State v. Shaw

9 S.C. 94, 1878 S.C. LEXIS 4

• Court: Supreme Court of South Carolina
• Decided: January 22, 1878
• Status: Published

Opinions

The Judges delivered their opinions, seriatim, as follows:

Haskell, A. J.

The question in this case is of the most serious character. It involves the construction of an important clause in the Constitution of the State, and upon such construction depends the title to one of the highest and most honorable offices in the gift of the State. The Court, impressed by the gravity as well as the magnitude of the matter which it has had under consideration, while there is division of opinion, has, nevertheless, arrived at a conclusion concurred in by a majority of its members. The opinion of each Justice will be rendered separately, and I proceed to state some of the reasons by which my mind has reached that conclusion upon which the judgment of the Court is based.

The action is brought in the name of the State by the Attorney General, and is against A. J. Shaw as occupant of the office of Judge of the Third Judicial Circuit of the State, claiming to have been elected thereto on the 12th day of February, 1875. The second and third allegations of the complaint, and upon which the questions hinge, are as follows:

“2. That the Constitution of the State of South Carolina, ArtiIV, Section 13, provides that for each judicial circuit a Judge shall be elected by joint ballot of the General Assembly.

“3. That said A. J. Shaw was not elected Judge of the Third Judicial Circuit by joint ballot of the General Assembly, as the Constitution of the State requires, but was elected by the viva voce vote of the Senators and members of the House of Representatives met in joint assembly.”

In the answer of the defendant it is alleged:

“That, in accordance with the provisions of the Constitution of this State, (Section 24, Article II, and Section 11, Article IV,) he was elected to the office of Judge of the Third Judicial Circuit on the 12th day of February, A. D. 1875, by the joint vote of the General Assembly of South Carolina, the members thereof voting viva voce, and their votes thus given being entered upon the journal of the house to which they respectively belonged, and that by virtue of said election he now holds and lawfully is in the exercise of the said office, and has not intruded into the same.”

Section 11, Article IV, provides how vacancies shall be filled, and on this point there is no dispute.

Section 24, Article II, cited in the answer, is as follows: “In all elections by the General Assembly, or either house thereof, the members shall vote viva voce, and their votes thus given shall be entered upon the journal of the house to which they respectively belong.”

And upon this the defendant rests his title to the office. The facts are admitted, and the question becomes one of law solely, and, briefly stated, is thus :

It is claimed by the State, first, that where the manner or mode of voting at an election is prescribed by the Constitution, it must be observed, and that an election by any other mode of voting than the one prescribed is null and void; second, that the Constitution, in Section 13, Article IV, does prescribe the manner of voting at the election of Circuit Judges [vide above]; third, that the said mode or manner of voting as prescribed by the Constitution was not observed at the election by which defendant claims the office; fourth, and that, therefore, the election is a nullity, and the defendant has no right to the office.

On the other hand, it is contended that the second proposition above set forth is, in law, not true; but that the mode of voting at the election of Circuit Judges is prescribed and fixed by Section 24, Article II, as well as by Section 13, Article IV, of the Constitution, and that the former Section prevails as to the manner of voting, and that the latter Section applies only to the manner in which the two houses shall assemble for the purpose of voting; second, that the election of defendant was had in conformity to the requirements of both Sections of the Constitution, and -that, therefore, the election is good in law, and the defendant lawfully holds his office.

The general proposition, that'where the manner of voting is fixed by the Constitution it must be observed and obeyed, is not controverted. It is reduced, then, to the naked inquiry, is the manner of voting at election of Circuit Judges fixed by the Constitution? and, if so, what is that prescribed manner, and has it been complied with in this case? Both sides agree that the mode of assembly of the two houses for the purpose of voting is prescribed by Section 13, Article IV, and that the mode is joint assembly. But, in behalf of the State, it is argued that after the two houses have met the vote must be “by ballot;” whereas the defendant claims that the vote must be “viva voee,” in obedience to Section 24, Article II, of the Constitution. Which is the law?

The case was argued on both sides with ability, and did the time permit I would avail myself much more, than under the circumstances is possible, of many of the suggestions and cited authorities, by which I would be aided in elaborating an opinion upon so grave a subject. But it is obvious that if the Court has arrived at an unchangeable conclusion it is its duty to render a decision promptly. While it is important that the reasons should be clearly set forth, it is sometimes more important that the conclusion be announced and uncertainty be removed.

Let us now put together the two Sections in which the law of this case lies.

Section 24, ArticleII, Legislative Department: “In all elections by the General Assembly, or either house thereof, the. members shall vote viva voce, and their votes thus given shall be entered upon the journal of the house to which they respectively belong.”

Section 13, Article IV, Judicial Department: “And for each circuit a Judge shall be elected by joint ballot of the General Assembly.”

Were the last Section considered alone, there could be no doubt about its meaning. “Elected by the two houses of the General Assembly met in joint assembly — ¿voting by ballot.” The word “joint,” of necessity, qualifies the “General Assembly,” for were it made to qualify the word “ ballot,” _ it would lead to the absurdity of saying “vote by a joint ball or tipket,” which is impossible. We are forced to adopt the plain meaning established by the common use of the words, by. parliamentary usage and by legislative enactments, all concurring. Indeed, the phrases quoted by counsel, “by joint ballot,” “ by ballot jointly,” “-jointly by ballot,” and “joint ballot,” in connection with elections by the two houses of the General Assembly, have interchangeably been so used, and with undisputed and undoubted signification, from the time of the adoption of the Constitution of 1788 to the time of the adoption of the Constitution of 1868.

But it is said that while “ballot” and “vote” are not synonymous, yet that by usage it has become common to use the word “ballot” in the sense of “vote,” or the “act of voting,” without any reference to the manner of voting; or, in other words, that “to ballot” may mean “to vote viva voce” or “to vote by ballot,” — that the true meaning is to be derived no! so much from the word itself as from the context and the object in view. If this be so, could not Section 1, Article VIII, on the right of suffrage, which reads: “In all elections by the people the electors shall vote by ballot ” be construed to mean “vote viva voce?”

It is argued, however, that the meaning of Section 13, Article IV, is limited by Section 24 of Article II, which it is claimed is an universal rule and controls all elections by the General Assembly and annuls any subsequent provisions which may not be in accord with it. The proposition, then, is that the word “ ballot ” in Section 13, Article IV, is either a nullity, because in conflict with the rule set up as universal, or must be made to harmonize therewith by construing the word, if it be possible, to mean “ vote.” I see no difficulty in the coexistence and operation of the two provisions, even although the first be an universal rule and the second an exception thereto.

The first occurs in the Article on the legislative department, and defines and limits the power of the General Assembly with regard to elections in that body.

In Article III, the executive department, it will be found in Section 4 that when the election of Governor devolves upon the Legislature by reason of “two or more” of the candidates being “ equal and highest in votes,” it is provided that “the General Assembly shall, during the same session, in the House of Representatives, choose one of them Governor viva voee.”

In Article IV, judicial department, Section 2 provides that the Justices of the Supreme Court “shall be elected by a joint vote of the General Assembly,” and, Section 13, Circuit Judges “ by joint ballot of the General Assembly.”

While it might be argued, and, perhaps, with force, that Section 24, Article II, relates only to elections of officers of the General Assembly, and to elections created by legislation, there can be but little doubt as to its having relation specially to that class of elections, for in only three cases does the Constitution order elections by the General Assembly, and in two of these it specifies the manner of voting, and leaves only the third — the election of Justices of the Supreme Court — subject probably to the provisions of Section 24, Article II. And if we were undertaking to go behind the words of the Constitution to interpret its meaning, it might be very forcibly shown why a difference is made in the mode of voting for Governor and for Circuit Judges by the General Assembly — the former having been previously voted for directly by the people, and the election of the latter having originated in the General Assembly.

This, however, is irrelevant, and it is unnecessary to do more than lay down the proposition that any general or universal rule is subject to exceptions, when the exceptions emanate at the same time from an equal or the same power, and that is the present case. The 24th Section, Article II, is of force in so far as it is not varied by subsequent provisions in the same instrument.

It appears to me to be clear that the Convention so understood it, and adopted that Section to define the power of the legislative branch of the government, and then provided by succeeding Sections for the specific modes of conducting certain elections which confer offices of great importance.

The question is thus narrowed down to the last proposition, which is the strength of the case. Can the words “by joint ballot” be construed to mean “ by joint vote,” that thereby the two apparently conflicting Sections may be made to- conform, and the election be conducted by voting viva voce? This depends solely upon the meaning of the word “ballot.” If “a,ballot” or “to ballot” can be considered to mean “a vote” or “to vote,” that meaning should be adopted, for it would give the fullest force and effect to both Sections of the Constitution.

I will say here that while the argument was able and ingenious it did not impress my mind, and subsequent reflection has strengthened the conviction that the word “ballot” has a fixed, distinct and clearly-defined meaning, so absolute and so well understood as not to admit of a doubt.

The learned counsel for the defendant base their construction of the word “ballot” upon two grounds:

1. That the theory of the State Constitution is “ that in all elections by the Legislature the action of each member should be open to the scrutiny of his constituents, so as to preserve the accountability of the legislator to the people.

2. That the word “ ballot ” must be taken in its “ popular ” sense, and in that sense its meaning is the “act of voting,” without any designation of the manner of voting.

However plausible may be the policy of the principle set forth in the first ground, — and strong, had it been argued in the Convention, — it is of no avail now. When we go to say what is the law of the land, we must take the law as it is and not as it may have been. The rules of interpretation are well stated, as follows: “ The way to ascertain * * * our obligations as they arise from instituted laws is to collect the meaning and intention of the lawmaker from some outward signs or marks; the collecting such intention from such signs or marks is called interpretation.”

“ Words are the common signs that mankind make use of to declare their intention to one another; and when the words of a man express his meaning plainly, distinctly and perfectly, we have no occasion to have recourse to any other means of interpretation.”— Rutherford’s Rules, Potter’s Dwaris, 135.

And it is only where the words fail to express the meaning plainly, distinctly and perfectly that we can have recourse to conjecture, whether rational or probable. The first ground, therefore, is removed, unless the second is maintainable.

To cast any obscurity over the words “ by joint ballot,” it must be shown that the word “ ballot ” has two meanings when used in such connection and may have been employed in either sense by the Convention. And this becomes a question of evidence and authorities. The “popular” meaning of a word must be understood to be its correct meaning until the contrary is shown. Yet stronger is the presumption that in a convention which frames the constitution of a State words are used in their true signification, and they must be so accepted until the error is clearly proven.

What, then, is.the true and correct meaning of this word ballot? It is of French origin, and has been adopted into the English language without any change in its meaning, so far as the authorities give us light. In the standard French dictionaries it is defined to mean “the act of voting by balls or tickets by putting the same into a box or urn;” “secret voting by means of ball or ticket.” The examples in Richardson’s English Dictionary clearly define its meaning to be the same as the French word, and I will quote one or two to show a little both of the meaning and history of the word in England:

“ The greatest of the Parliament men hated this design of rotation and balloting as being against their power.” “No Magistrate was to continue above three years, and all to be chosen by ballot; than which choice nothing could be more fair or impartial, as ’twas then thought, though opposed by many for several reasons.”

In Worcester’s Dictionary it is defined “ a secret method of voting at elections; America — where the ballot is practiced.” And so Walker, and so does Webster; and certainly had the word had any popular signification other than the above, it would have been given to us by Webster.

In an elaborate article on the word in the Encyclopedia Brittannica, the concluding sentence is as follows: “It is one of those matters of which it is necessary in a work like the present'to give some historical account, and at the same time to explain its existing position as a political question, with a fair view of the arguments adopted by either side.” So, also, an able essay on the same subject in the Encyclopedia Americana presents the word “ballot” as expressing the side of secret voting as against viva voce or public voting. In neither of these articles is the slightest deviation from the definition above cited, nor is there an intimation that any other meaning has ever been attached to the word. Ballot represents the one policy and viva voce the other.'

It is to-day the question between parties in England. It is the main distinction between elections in England and the United States. It has been characteristic of France in her republican government, and is to-day an open question in every constitutional and legislative body that assembles in the United States. The expression “blackballing” still used in secret votes in clubs and private associations is the perpetuation of the ballot by white stones and black stones, by which the Dikasts cast their votes in the judicial assembly at Athens, and signifies the same as the tabula or tabella by which the secret votes were taken in Rome. Thus history and literature and the unswerving practice in the constitutional and legislative assemblies from 1788 to the present day show one invariable meaning and application of the word. And as it was used in the-Constitution of 1868, so it had been used from the beginning of the existence of the State in reference to judicial elections.

In 1865 the question was agitated, and, as is cited in the argument for the defense, a change was urged by the Provisional Governor of the State, and finally was carried in the Convention assembled that year. The Legislature was commanded to vote viva voce in the election of Judges, and it was openly declared that it was so done to carry into effect the theory of responsibility and subjection of legislators to the scrutiny of their constituents. Again, in 1868, the Constitution was changed a'nd the old method restored. Is it possible that it can.be argued that the meaning of the word, so recently and with so much ardor discussed, was not understood? In Section 1, Article VIII, it is said that “in all elections by the people the electors shall vote by ballot.” Could the meaning of the word be more sharply defined than it is in that Section ? The supposition cannot be sanctioned that the framers of the Constitution could have so trifled with a word of such magnitude as to have used it in senses exactly contrary to each other in two such important Sections of that instrument. The authority adduced to show that “by joint ballot” can mean “by joint vote,” or that “ballot” means “vote,” without regard to the manner of voting, is this: That in the journals of the Convention and of the General Assembly, and in the reports of elections by the public press, the word ballot is “applied as a generic term, denoting the ‘act of voting’ as often as it is used as a specific term confined to one particular mode of voting.”

There is no authority to show that it has ever been so used in any parliamentary body in debate upon the question or in legislation upon the subject. The proposition, then, is in no wise sustained, nor can I think it sustainable. The use of the word relied upon by counsel is a mere abbreviation for the convenience of journalists and the press, and can in no wise be sanctioned to establish the meaning of words.

The evidence in the body of the instrument shows that the Convention understood the words it used, and upon opening the journal nothing is adduced to strengthen the defense. On the contrary, almost the initiatory debate in that body was upon “ballot” as opposed to voting by viva voce.

The fact that the 13th Section, Article IY, was passed at the second reading in the words “by joint vote, (Journal, p. 617,) and that it was subsequently changed and ratified in the words “by joint ballot,” (Journal, p. 856,) compels us to conclude that the change was made for a purpose, and that purpose can be but the one indicated by the distinction between the words.

Finally, the ratification and adoption of the Constitution was submitted to the people of the State. The instrument was adopted as it is written, and that is what it means, and so it must stand.

It is with unfeigned reluctance that a majority of the Court has arrived at the conclusion reached in this case; but whatever may be the inconvenience or the individual hardships involved in the decision, it is our solemn duty to declare the law as it is written.

It is, therefore, ordered and adjudged that the plaintiff have judgment of ouster against the defendant, as prayed for in the complaint.