January 4, 1933. The opinion of the Court was delivered by
Mr. W.H. Townsend, Circuit Judge.
This is a petition by M.G. Andersen to review on certiorari the findings of the board of State canvassers in the matter of the election of a Senator from Horry County in order that the petitioner may be declared the duly elected Senator for Horry County.
It is alleged in the petition that at the election held in said county on November 8, 1932, according to the returns of Horry County board of canvassers, the respondent H.K. Cooke received 3, 132 votes and the petitioner 22 votes for said office, that the petitioner appeared before the State board of canvassers alleging that said Cooke was ineligible to such office at the time of the election, and that the petitioner should have been declared the duly elected Senator for Horry County.
The only question presented to the Court is as to the eligibility of Mr. Cooke for the office of Senator.
The Constitution 1895, Art. 3, § 11, provides: "Each House shall judge of the election returns and qualifications of its own members."
The power vested in the State board of canvassers to decide as judicial officers who, in a given case, has received the largest number of votes for the office of State Senator, is, of course, subject to the power vested in the Senate by the Constitution to judge of the election returns and qualifications of its own members. Ex parte Scarborough, 34 S.C. 13, 16, 12 S.E., 666.
The merits of a contested election case in the Senate cannot be taken from the constitutional tribunal, and brought on for adjudication in a Court of either law or equity. Hulseman v. Rems, 41 Pa., 396; Sutherland v. Miller, 79 W. Va., 796, 91 S.E., 993, L.R.A., 1917-D, 1040; Alexander v. Pharr, 179 N.C. 699, 103 S.E., 8.
For these reasons, it is ordered that the petition in the above-entitled matter be, and is hereby, dismissed.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES CARTER and BONHAM, and MR. CIRCUIT JUDGE M.M. MANN concur.