Johnston v. Corporation of Charleston

1 S.C.L. 441

Opinion

The Court,

(all the Judges present)

after hearing counsel, were unanimously of opinion, that the city council, in the first instance, had the power of scrutinizing into the election of their members, and that this right was incident to all elective bodies. But that if they abused their power, or did injustice, then this court would interfere, and see that justice was done. That with respect to their swearing the voters, or compelling them to declare for whom they gave their votes, it was a kind of inquisitorial power unknown to the principles of our government and constitution, and might be highly injurious to the suffrages of a free people, as well as tending to create cabals and disturbances between contending parties in popular elections. As to the mode adopted by the council in deducting the bad votes from the highest candidate, it was perhaps the best general rule that could be adopted : for if after such deduction, he had still a majority, then his election would stand unimpeached ; but if after the deduction, the next candidate had an equal or greater number of votes than the other, so as to make it a doubtful case which of them really and truly had the greatest number of unquestionable votes; then, according to the principles of a free government and the rights of the people, it ought to be sent back to the people at large to determine finally on the point. That as to his being sworn, it could not alter the case ; for if he was not duly elected, he ought not to have taken his seat; and the mere act of being sworn in, which was founded on a supposed light, did not give him a real one, which must have depended on the choice of the people of the ward?

Rule discharged.