The opinion of the Court en banc
was delivered by
Mr. Chief Justice McIver.
This was a proceeding instituted in the Supreme Court in the exercise of its original jurisdiction, mainly for the purpose of testing the legality of the establishment of Lee County, formed from certain portions of territory cut off from the counties of Sumter, Kershaw, and Darlington. In the petition it is alleged, amongst other things, that while the result of the election, ordered by the governor, in those portions of Sumter and Kershaw counties cut off from said counties, and embraced-within the area of the said new county, “was, as reported by the managers of elections within said areas, and as declared by the commissioners of election for said two old counties, favorable to the creation of said new county; but the result of said election in the county of Darlington, embraced within the area of said new county, was as returned by the managers of election, within said last named area, and as declared by the commissioners of election for said old Darlington County, unfavorable to the creation of said new county, in that, as reported and declared, it failed to obtain two-thirds of the qualified electors of said embraced area of Darlington County in favor of such new county.” These allegations are made in the fifth paragraph of the petition, and in the twelfth paragraph it is again alleged that the proposition to establish Lee County “did not receive the favorable vote of two-thirds of the qualified electors voting in each section of said proposed new county, as reported by the managers of election, and as determined by the commissioners of election for the several old counties from which this new county was proposed to be taken.” In the sixth para[21]*21graph of the petition it is alleged: “That the result of said last mentioned election was certified, in legal form, by the commissioners of election for said three old counties to the secretary of State and by him was submitted to the General Assembly at its next session.”
The respondents in their amended return say: “That the statement as to the election made in paragraphs 5 and 6 of the petition is incomplete and incorrect; and respondents aver that, not only in the Sumter and Kershaw sections, but also in the Darlington section of Lee County, more than two-thirds of the votes cast were cast in favor of the formation of Lee County; that they admit that the election so prayed for, as alleged in paragraph 5 of the petition, was field, and the name proposed for the new county was Lee County; but they deny each and every other allegation contained in said paragraph of the petition.” And they then proceed to allege that in Darlington County there were only two precincts at which an election was held, to wit-. “Cypress” and “Ashland;” that the managers at Cypress duly held said election and duly delivered to the commissioners of elections, the poll list, the box containing the ballots and a written statement of the result of the election at that precinct, showing that more than two-thirds of the votes there cast were in favor of the new county; and that the commissioners of election for Darlington County, at their first meeting thereafter, canvassed the return of the managers for that precinct and declared the result of the election there in accordance with said return; that the managers of election at Ashland precinct did not deliver to the commissioners of elections the poll list, the box containing the ballots or the written statement of the result of the election, as recpiired by statute, nor did they return the vote there cast, but two days after the election, at Darlington Court House — not at Ashland — they prepared an illegal, unauthorized and incorrect paper, alleging it to be a statement of the vote cast at that precinct, and attached thereto an affidavit of the managers, stating that a written statement of [22]*22the result of the election had been put in the ballot box, and that the box and contents were stolen on the night of the election; that upon such paper presented by the managers, the commissioners of election, at their subsequent meeting, declared the result of the election at Ashland to be against the formation of Lee County, notwithstanding that protest had been made against the making of such declaration, and notwithstanding the fact that more than two-thirds of the votes cast at Ashland precinct had been cast in favor of the formation of Lee County, which fact was fully proved before the General Assembly, “and the truth of which these, respondents here allege and aver.” It is further alleged in the return of respondents that at the second meeting of the commissioners of election, they illegally declared the election at Cypress to be null and void, and never certified to the-secretary of State the result of the election at such precinct in tabulated statement of the vote cast thereat, as required by law, nor in any other form. In that portion of the origi - nal return of respondents which has not been amended, they say, in answering the twelfth paragraph of the petition, that “They admit that the petitioners are citizens, electors, freeholders and taxpayers in Lee County, opposed to its creation, but they deny each and every other allegation of said paragraph.”
After hearing the petition and return, as amended, and after full argument of, counsel, it appearing that certain issues of fact were presented by the pleadings, which it was necessary should be referred to a referee to hear and determine, a question thereupon arose as to what issue or issues of fact should be referred to the referee, and there being a difference of opinion amongst the members of the Supreme Court as to that question, and two of the Justices of this Court having expressed a desire that all of the Circuit Judges should be called to the assistance of the Supreme-Court, for the purpose of determining that question, in accordance with the provisions of section 12 of art. V. of the-present Constitution, an order to that effect was accordingly-[23]*23passed on the 8th of June, 1898, and in pursuance of that order the Circuit Judges have been called.in by the Chief Justice.
1 For a proper determination of the question thus presented to the Court, as at present constituted, it will be necessary to consider, briefly, what is the law with respect to the formation of new counties in this State. It seems that, prior to the adoption of the Constitution of 1868, there was no constitutional limitation upon the power of the General Assembly to provide for the formation of new counties. But by section 3 of art. II. of the Constitution of 1868, the General Assembly was specifically vested with the power to organize new counties, with these limitations, however, that “no new county shall hereafter be formed of less extent than 625 square miles, nor shall any existing counties be reduced to a less extent than 625 square miles.” The present Constitution, in art. VII. places still further limitations upon the power of the General Assembly to establish new counties. The only one of these additional limitations necessary to be considered for the purpose of deter- - mining tire question now before us, is that contained in section 2 of that article, whereby it is provided that “iNo section of the county proposed to be dismembered shall be thus cut off without consent by a two-thirds vote of those voting in such section.” But the Constitution nowhere provides how the election for this purpose, which is required by section x of the same article, shall be held, or how its result should be ascertained, and hence that must be provided for by the General Assembly.
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The opinion of the Court en banc
was delivered by
Mr. Chief Justice McIver.
This was a proceeding instituted in the Supreme Court in the exercise of its original jurisdiction, mainly for the purpose of testing the legality of the establishment of Lee County, formed from certain portions of territory cut off from the counties of Sumter, Kershaw, and Darlington. In the petition it is alleged, amongst other things, that while the result of the election, ordered by the governor, in those portions of Sumter and Kershaw counties cut off from said counties, and embraced-within the area of the said new county, “was, as reported by the managers of elections within said areas, and as declared by the commissioners of election for said two old counties, favorable to the creation of said new county; but the result of said election in the county of Darlington, embraced within the area of said new county, was as returned by the managers of election, within said last named area, and as declared by the commissioners of election for said old Darlington County, unfavorable to the creation of said new county, in that, as reported and declared, it failed to obtain two-thirds of the qualified electors of said embraced area of Darlington County in favor of such new county.” These allegations are made in the fifth paragraph of the petition, and in the twelfth paragraph it is again alleged that the proposition to establish Lee County “did not receive the favorable vote of two-thirds of the qualified electors voting in each section of said proposed new county, as reported by the managers of election, and as determined by the commissioners of election for the several old counties from which this new county was proposed to be taken.” In the sixth para[21]*21graph of the petition it is alleged: “That the result of said last mentioned election was certified, in legal form, by the commissioners of election for said three old counties to the secretary of State and by him was submitted to the General Assembly at its next session.”
The respondents in their amended return say: “That the statement as to the election made in paragraphs 5 and 6 of the petition is incomplete and incorrect; and respondents aver that, not only in the Sumter and Kershaw sections, but also in the Darlington section of Lee County, more than two-thirds of the votes cast were cast in favor of the formation of Lee County; that they admit that the election so prayed for, as alleged in paragraph 5 of the petition, was field, and the name proposed for the new county was Lee County; but they deny each and every other allegation contained in said paragraph of the petition.” And they then proceed to allege that in Darlington County there were only two precincts at which an election was held, to wit-. “Cypress” and “Ashland;” that the managers at Cypress duly held said election and duly delivered to the commissioners of elections, the poll list, the box containing the ballots and a written statement of the result of the election at that precinct, showing that more than two-thirds of the votes there cast were in favor of the new county; and that the commissioners of election for Darlington County, at their first meeting thereafter, canvassed the return of the managers for that precinct and declared the result of the election there in accordance with said return; that the managers of election at Ashland precinct did not deliver to the commissioners of elections the poll list, the box containing the ballots or the written statement of the result of the election, as recpiired by statute, nor did they return the vote there cast, but two days after the election, at Darlington Court House — not at Ashland — they prepared an illegal, unauthorized and incorrect paper, alleging it to be a statement of the vote cast at that precinct, and attached thereto an affidavit of the managers, stating that a written statement of [22]*22the result of the election had been put in the ballot box, and that the box and contents were stolen on the night of the election; that upon such paper presented by the managers, the commissioners of election, at their subsequent meeting, declared the result of the election at Ashland to be against the formation of Lee County, notwithstanding that protest had been made against the making of such declaration, and notwithstanding the fact that more than two-thirds of the votes cast at Ashland precinct had been cast in favor of the formation of Lee County, which fact was fully proved before the General Assembly, “and the truth of which these, respondents here allege and aver.” It is further alleged in the return of respondents that at the second meeting of the commissioners of election, they illegally declared the election at Cypress to be null and void, and never certified to the-secretary of State the result of the election at such precinct in tabulated statement of the vote cast thereat, as required by law, nor in any other form. In that portion of the origi - nal return of respondents which has not been amended, they say, in answering the twelfth paragraph of the petition, that “They admit that the petitioners are citizens, electors, freeholders and taxpayers in Lee County, opposed to its creation, but they deny each and every other allegation of said paragraph.”
After hearing the petition and return, as amended, and after full argument of, counsel, it appearing that certain issues of fact were presented by the pleadings, which it was necessary should be referred to a referee to hear and determine, a question thereupon arose as to what issue or issues of fact should be referred to the referee, and there being a difference of opinion amongst the members of the Supreme Court as to that question, and two of the Justices of this Court having expressed a desire that all of the Circuit Judges should be called to the assistance of the Supreme-Court, for the purpose of determining that question, in accordance with the provisions of section 12 of art. V. of the-present Constitution, an order to that effect was accordingly-[23]*23passed on the 8th of June, 1898, and in pursuance of that order the Circuit Judges have been called.in by the Chief Justice.
1 For a proper determination of the question thus presented to the Court, as at present constituted, it will be necessary to consider, briefly, what is the law with respect to the formation of new counties in this State. It seems that, prior to the adoption of the Constitution of 1868, there was no constitutional limitation upon the power of the General Assembly to provide for the formation of new counties. But by section 3 of art. II. of the Constitution of 1868, the General Assembly was specifically vested with the power to organize new counties, with these limitations, however, that “no new county shall hereafter be formed of less extent than 625 square miles, nor shall any existing counties be reduced to a less extent than 625 square miles.” The present Constitution, in art. VII. places still further limitations upon the power of the General Assembly to establish new counties. The only one of these additional limitations necessary to be considered for the purpose of deter- - mining tire question now before us, is that contained in section 2 of that article, whereby it is provided that “iNo section of the county proposed to be dismembered shall be thus cut off without consent by a two-thirds vote of those voting in such section.” But the Constitution nowhere provides how the election for this purpose, which is required by section x of the same article, shall be held, or how its result should be ascertained, and hence that must be provided for by the General Assembly. Accordingly that body, at its first session after the adoption of the present Constitution passed “An Act to provide for the formation of new counties, and the changing of county lines and county seats, and consolidation of counties,” approved 9th March, 1896 — 22 Stat., 64. That act, after providing in the first and second sections for the holding of an election to determine whether any proposed new county shall be established, proceeds in the third section to provide as follows: “For the purpose of [24]*24such election, the commissioners of election'for each old county proposed to' be cut shall appoint three managers for each voting place in the area of the old county proposed to be cut off, not more than two of whom shall be in favor of the proposed new county or against it, and shall deliver to them the books of registration for those voting places, which the registration officers shall turn over to the commissioners on demand. Such election shall be conducted in the same manner as general elections in this State, and all persons entitled to vote under the Constitution and laws of this State, at general elections, shall be entitled to vote at such election.” The provisions of the fourth section of said act are as follows: “The commissioners of elections for each old county proposed to be cut shall canvass the returns of the managers of each precinct in their county at which such election has been held, as such returns in general elections in this State are canvassed, and shall certify the result thereof in tabulated statement of the vote at each precinct to the secretary of State, who shall transmit a tabulated statement of the vote at each precinct of an old county proposed to be cut off, to both branches of the General Assembly at its next session.” Then follows the fifth section in these words: “The General Assembly at its next session shall create such new county, if two-thirds of the qualified electors voting at such election shall vote in favor of the establishment of such new county, and if all the constitutional requirements for the formation of new counties have been complied with, of all which such General Assembly must judge.”
2 From this review of the legislation, both constitutional and statutory, it is apparent that one of the essential constitutional requirements for the formation of a new county is that: “No section of the county proposed to be dismembered shall be thus cut off without consent by a two-thirds vote of those voting in such section” (sec. 2, of art. VII). But as the Constitution makes no provision whereby it can be ascertained whether such consent has been manifested by a two-thirds vote of those vot[25]*25ing in the section of an old county proposed to be cut off, in favor of the formation of the proposed new county, it was necessarily left for the General Assembly to make such provision. This has been done by sections 3 and 4 of the act above quoted, whereby it is substantially provided in section 3 that managers of election shall be appointed for each voting place in the area of the old county proposed to be cut off, by the commissioners of elections for such old county; that such election shall be conducted in the same manner as general elections in this State; and that all persons who, under the Constitution and laws of this State, are entitled to vote at general elections, shall be entitled to vote at such election. And in the fourth section it is further provided, sub • stantially, that the commissioners of election for each old county proposed to be dismembered shall canvass the returns of the managers of each precinct in their county where such election shall be held, as such returns in general elections are canvassed, and shall certify the result thereof in tabulated statement of the vote at each precinct to the secretary of State, who shall transmit a tabulated statement of the vote at each precinct of an old county proposed to be cut off, to both branches of the General Assembly at its next session. This, it seems to us, is the only mode prescribed by law, whereby the essential fact can be ascertained, to wit: whether two-thirds of the vote cast at such election in that portion of an old county which it is proposed to cut off for the purpose of forming a new county were cast in favor of the formation of such new county; and it is, therefore, the only mode by which that essential fact can be properly ascertained. Hence the only issues of fact necessary to be referred to the referee for his determination are whether the commissioners of elections for the county of Darlington (no question having been raised as to the result of the election in the counties of Sumter and Kershaw) have certified the result of the election in tabulated statement of the vote at each precinct of said county at which such election has been held, to the secretary of State, and whether such tabulated statement has been [26]*26transmitted by him to the General Assembly at its session next following the election; and whether it does or does not appear from such tabulated statement that two-thirds of the votes cast in that portion of the county of Darlington proposed to be cut off for the purpose of forming the new county of Lee were in favor of the formation of such'new county; for until this essential fact is ascertained in the only mode prescribed by law, the General Assembly would have no power to pass an act for the formation of Lee County.
3 It is contended, however, that, by the terms of the fifth sec tion of the act above quoted the General Assembly has constituted itself the final judge of whether the necessary two-thirds vote was cast in the county of Darlington in favor of the formation of Lee County, and that by “An Act to establish Lee County,” approved the 19th of February, 1898 — 22 Stat., 908 — it has finally determined that question. In the first place, it seems to us that the language used in sec. 5 of the act of 1896, above copied, is susceptible of two constructions — one of which would be in accordance with the provisions of the Constitution and the other would bring that section into direct conflict with the provisions of that instrument. In this state of things the rule is well settled that such a construction of an act should be adopted as would avoid any conflict with the Constitution, rather than a construction which would bring about a conflict with the Constitution. It may be that the General Assembly only intended, by the language used in that section, to declare that it should have the power to determine whether the result of the election had been ascertained in the manner prescribed by law, to wit: by the mode prescribed by the two preceding sections, 3 and 4, hereinabove copied, and this is the construction which must be adopted.
[27]*274 [26]*26The construction contended for by the respondents is that, by the terms of the fifth section, the General Assembly has been invested with full power to determine finally whether this constitutional requirement as to the two-thirds vote as well as all the other constitutional requirements, have [27]*27been complied with. If this be the proper construe • tion of the language used in sec. 5, then it is a mani fest attempt on the part of the General Assembly to assume and exercise judicial powers, which is plainly forbidden by the Constitution (sec. 14, art. I). For it is alleged in paragraph 7 of the original return: “That all the allegations of the petition, as to the matters occurring prior to the passage of the act to establish Lee County, were duly presented to the General Assembly by those opposed to the creation of this county, and full testimony and full argument of counsel heard in support of their force and effect; and it was after such presentation, evidence and argument, that the act to establish Lee County was enacted by the General Assembly, upon full debate and consideration had.” That this was an exercise of judicial power on the part of the General Assembly is obvious, and it is equally obvious that it is in open violation of the section of the Constitution last cited, which reads as follows: “In the government of this State the legis • lative, executive and judicial powers of the government shall be forever separate and distinct from each other, and no person or persons exercising the functions of one of said departments shall assume or discharge the duties of any other.” Indeed, if the hearing and deciding a question as to the result of an election, upon evidence and argument, is not the exercise of judicial powers, it would be difficult to conceive what would constitute the exercise of such power. It necessarily involves the hearing of evidence and the determination of questions both of fact and law arising out of such evidence. We have no idea, therefore, that the General Assembly ever intended, by the terms of section 5 of the act of 1896, above referred to, to invest itself with judicial power; and if it did, then that section of the act is clearly unconsti • tutional, and, therefore, null and void. That this was the view of the framers of the Constitution, is clearly shown by the fact that by sec. 11 of art. III. of the Constitution, it was thought necessary to invest the General Assembly in express terms with power to pass upon the election returns and [28]*28qualifications even of its own members, for that section provides as follows: “Each house shall judge of the election returns and qualifications of its own members.” And again, by section 4 of art. IV., to confer upon the General Assembly the power to determine “contested elections for governor.” In these two cases, and in these only, is the General Assembly invested with power to determine the result of any popular election; and they are not only not invested, with any power to determine the result of any other popular election, but they are forbidden to assume or exercise such a power in any other case by the terms of sec. 14 of art. I., above quoted.
5 If it should be said that, under the views above presented, the board of commissioners of election would be invested with the power to determine finally the result of any election, such as that which is under consideration here, without any right of appeal to any other tribunal, and that the General Assembly could scarcely have intended any such re-suit; to this several answers may be made. First. If the language used in sections 3 and 4 of the act of 1896 above quoted requires such a construction, then ita lex scripta est would be a complete and sufficient answer. Second. If, however, the langauge used in those sections is susceptible of the construction that the General Assembly intended to confer a right of appeal to the board of State canvassers, as in other elections, then the objection falls to the ground, as there was, in this case, no appeal to the board of State canvassers. While, for the reason just stated, it is not necessary now to decide whether the construction suggested is the proper one, it may be not amiss to say that there is much in the language used to warrant such a construction. By sec. 174 of the Rev. Stat. of 1893, the commissioners of election are declared to be the county board of canvassers, and by section 175 it is declared that such board of county canvassers “shall have the power, and it is hereby made their duty, as judicial officers, to decide all cases under protest or contest that may arise, subject to appeal to the board of State [29]*29canvassers.” And in sec. 186, the board of State canvassers, it is declared, “Shall have power, and it is made their duty, as judicial officers, to decide all cases under protest or contest that may come before them on appeal from the decisions of the county board of canvassers;” and in several cases it has been held that the decisions of the board of State canvassers are final and not reviewable by appeal to this or any other Court, and at most can only be reviewed under a writ of certiorari, issued by this Court, for errors of law—Ex parte Riggs, 52 S. C., 298. It is true, that the statutory provisions just cited originally applied only to the election of certain officers, therein specified; but by an act approved 2d March, 1896 — -22 Stat. 55 — it is declared: “That all laws now of force relating to the formation of county and State boards of canvassers, and defining their powers' duties and liabilities, * * * be and the same are hereby continued of force, and applicable to all elections (italics ours) held under the Constitution ratified on the 4th day of December, 1895, until repealed or amended by the General Assembly.” The election now under consideration being an election held under the present Constitution, it seems clear that the powers and duties conferred upon the county boards of canvassers and the State board of canvassers by those sections of the Rev. Stat. which have been cited, are applicable to this election. It seems to us that the words used in the third section of the act of 1896, “Such election (that is, this election, ) shall be conducted in the same manner as general elections in this State,” and the words used in the fourth section of that act, requiring that the commissioners of election, who, as we have seen, constitute the board of county canvassers, “shall canvass the returns of the managers of each precinct in their county at which such election has been held as such returns in general elections in this State are canvassed,” may be construed as implying an intention on the part of the General Assembly that an election of this kind shall be conducted in all respects as general elections are conducted, in which, as we have seen, the right of appeal from [30]*30the decision of the board of county canvassers to the State board of canvassers, is secured. See Blake v. Walker, 23 S. C., at page 525, where similar language has been construed.
6 But even if there is no right of appeal from the return made to the secretary of State by the commissioners of elections, it does not follow that there is no remedy for a grossly erroneous or perhaps fraudulent return of the commissioners of elections; and least of all it does not follow' that this remedy is in the action of the General Assembly, by assuming and exercising a power which the Constitution, in express terms, prohibits it from exercising. It may be that the return of the commissioners of elections, if illegal or erroneous as matter of law, would be remedied on writ of certiorari, as in the case of Ex parte Riggs, supra; or it may be that if such return is alleged to be fraudulent, it might be set aside and declared void by an action for that purpose. But, however this may be, it seems to us clear that the General Assembly has no power either to set aside or disregard such return; and that until it is set aside or annulled in some form of proceeding recognized by law, it must be regarded as showing conclusively the result of the election.
For the foregoing reasons we cannot adopt the construction of sec. 5 of the act of 1896, contended for by the respondents, as such a construction w'ould bring the act into direct conflict with the Constitution; and, on the contrary, we must adopt the construction of sec. 5 therein, above first suggested, as that will avoid any conflict between the act and the Constitution.
From this it follows that the only questions of fact necessary to be referred to a referee are (1) • whether the board of commissioners of election for Darlington County certified the result of the election held in those portions of said county proposed to be cut off for the purpose of forming the proposed new county of Lee, under the order of his excellency, the governor, in tabulated statement of the vote at each pre[31]*31cinct, and transmitted the same to the secretary of State; (2) if so, whether it appears from such statement that two-thirds of those voting at such election were in favor of the •establishment of Lee County.
The judgment of this Court, as at present constituted, in accordance with the foregoing views, has heretofore been .announced in a short order heretofore filed.
Messrs. Justices Pope and Gary, and Judges James Aid-rich, Ernest Gary, J. C. Klugh, W. C. Benet, and R. C. Watts, concur.