CALLISON v. PEEPLES

Mr. R.H. Welch, for appellants, submits: The decision of the State board of canvassers was final on questions of fact: Civil Code 1912, secs. 641 and 642; 79 S.C. 416; 65 S.C. 85. As to reduction of area of old county: 93 S.C. 217; Const., art. VII, sec. 7. Voting place established by the legislature cannot be moved by the managers. Election could not be held at boxes without area of proposed new county: Const., art. VIII, sec. 1. The inquiry is, then, why was no provision made so that every one in the territory could vote? The answer is that this was not practical under the Constitution, and this the General Assembly saw. The Constitution had just regulated the right of suffrage. To fully accomplish its object and make the same effective it laid down certain fixed rules for voting. It provided, as to polling precincts: "(a) The General Assembly shall provide for the establishment of polling precincts in the several counties of the State * * *; (b) Each elector shall be required to vote at his own precinct * * *; (c) Provision shall be made for his transfer to another precinct upon his change of residence:" Art. II, sec. 9. As to qualifications of suffrage: "(a) Registration, which shall provide for the enrollment of every elector * * *; (b) The General Assembly shall provide for issuing to each duly registered elector a certificate of registration * * *:" Art. II, sec. 4, subdivisions (a) and (b). These constitutional provisions received immediate legislative construction at the 1896 session of the General Assembly: 22 Stats., p. 32, sec. 9; p. 44, sec. 22; Civil Code 1912, secs. 219, 239. It is plain, therefore, that the Constitution meant to limit the right of the elector to vote strictly at the polling place where his registration certificate read for and nowhere else. Now, then, is it not clear that these parties, in order to have voted, would have had to have had their voting places outside of the area of the new county opened on the day of the election? They were registered there. They could not change or transfer to some inside box, for only upon a change of residence does the Constitution permit or provide for a transfer. But should the boxes on the outside have been opened, then what would have become of the constitutional provision, art. VIII, sec. I, requiring the election to be held in the territory? To have opened the boxes on the outside would have been to hold the election on the outside as well as on the inside of the territory. But, it may be argued that the words "within the proposed area" refer to the "qualified electors" just preceding them. The General Assembly of 1896, with a great many of the ablest members fresh from the constitutional convention, however, construed "within the proposed area" to refer to the election as well; and hence it provided that boxes only should be opened therein. This is a legislative construction of the meaning of the Constitution, which is entitled to great weight and respect: 76 S.C. 590. Then, how did they expect every voter in the territory to be able to vote? Did they, as a matter of fact? Turn to Const., section 2, art. VII, for an answer. Does this not show that they realized that there would be those who were qualified to vote in general and other special elections who would not be able to vote in a new county election? "Two-thirds of the qualified electors voting at such election." "Two-thirds of those voting in such election." Where else does this expression occur? Was it inserted to avoid the construction that the two-thirds vote required would have to be two-thirds of all the qualified electors in the territory? Certainly not. A majority vote, a two-thirds vote, a three-fourths vote, etc., means, of course, of those voting, and no provision is necessary to be inserted in order to guard against any other construction. Why, then, was this expression inserted in section 2 of art. VII? It means that the framers of the Constitution saw the whole situation, and determined that a two-thirds vote of those able to vote at the election held within the proposed area should be sufficient to create a new county. And this means that for the purpose of this election there may be and often will be those so situated, as some were here situated, with regards to their voting places as not to be able to vote. As to these the Constitution does not confer upon them the right to vote in this election: See 78 S.C. 574; 65 S.C. 85; 54 S.C. 25. Messrs. Grier, Park Nicholson, for respondents, cite, as to: I. Who are entitled to vote on the formation of a new county? Const., art. VII, secs. 1, 2; 78 S.C. 574; 79 S.C. 414; 9 S.C. 141; 78 S.C. 461. 2. What part of the electorate deprived of the right to vote would be necessary to render an election void? 78 S.C. 570; 79 S.C. 414; 84 S.C. 48; 76 S.C. 574; 86 S.C. 451; 97 S.C. 1; 1 Bay. 441. 3. Does the statute relative to the formation of new counties — applied to the facts of this case — meet the requirements of the Constitution? Civil Code 1912, sec. 641; 86 S.C. 419. 4. Can Greenwood county be reduced below the five hundred square mile constitutional limit? 93 S.C. 217.