April 12, 1916. The opinion of the Court en banc was delivered by In the fall of 1914 a petition was filed with the Governor praying for an election on the question of creating a new county out of portions of Abbeville, Edgefield, and Greenwood. In accordance with the provisions of the statutes (section 636, et seq., vol. I, Code 1912), a commission was appointed, and, upon the filing of the report of the commission that the provisions of the Constitution and statutes relating to the formation of new counties had been complied with, an election was ordered to be held on December 29, 1914. That election was held, and, on the face of the returns, the result was in favor of the new county; but the election was contested on the ground, among others, that qualified electors residing in certain parts of Greenwood, *Page 288 which it was proposed to incorporate into the new county, had been denied the right to vote in the election by the failure of the election officers to open the polls at the voting places, or precincts, for which they were registered, and that there was a sufficient number of such electors to have changed the result. Upon that ground the election was held to be void. Callison v. Peeples, 102 S.C. 255, 86 S.E. 635. Within a reasonable time after the filing of the decision of this Court holding the election null and void the Governor ordered another election on the same question to be held on December 14, 1915. This order was based upon the same petition, record, and report of the commissioners as the previous order. The election was held, and the result was declared to be in favor of the new county, notwithstanding it was contested on the same grounds upon which it sought in this proceeding to have it set aside, to wit:
(1) In the creation of the new county the area of Greenwood has been reduced below 500 square miles. Section 4 of article VII of the Constitution provides that in the creation of new counties "no old county shall be reduced to less area than five hundred square miles," etc. InRhame v. DuRant, 93 S.C. 217, 76 S.E. 611, I considered the provisions of article VII of the Constitution, and reached the conclusion that the words "old county," in section 4, above quoted, were used by the framers of the Constitution to designate the then existing counties, and that a county thereafter created, as Greenwood was, is not an "old county" within the meaning of those words as used in section 4. Upon further consideration of the question, in the light of the debates in the constitutional convention on the adoption of the provisions of article VII, I entertain no doubt of the correctness of the conclusion. The reasons upon which my decision is rested are fully set forth in the opinion in that case, and need not be repeated here. *Page 289
(2) The last sentence of section 2 of article VII reads:
"An election upon the question of forming the same proposed new county shall not be held oftener than once in four years."
It is contended that the election of December 14, 1915, was in violation of this provision, because it was within four years of the previous election. That contention would be sound if the election of 1914 had not been contested and set aside. But it was adjudged to be null and void. Therefore it was no election. By the terms of the Constitution the intention as clearly appears that, on compliance with the specified conditions, the people interested should have the right to an election on the question of creating the new county as that they should not be annoyed by the agitation of that question oftener than once in four years. They complied with the conditions. They were entitled to an election. The opponents of the new county contended that the election of 1914 was no election. The Court sustained that contention. The judgment was that the election was null and void. That means, if it means anything, that there was no election. Now they say it was an election, and, because it was, another election could not lawfully be held until after the lapse of four years from the date of the first. The bare statement of the contention shows its fallacy.
It is argued, however, that the first election was not void, but only voidable, and we are asked, upon this technical distinction, to hold that the first election was a bar to the second. The distinction between void and voidable is well understood, and it is recognized in our decisions for some purposes and in some circumstances. See State v. Smith,101 S.C. 293, 85 S.E. 958. No doubt, if the first election had not been contested and set aside, it would have been a bar to the second. But that does not impair in the least the rule that, when that which is voidable has been adjudged to be void as to all parties interested, it is, as to all rights or interests thereafter based upon it, as if it never existed. *Page 290 From that time on no rights can be predicated upon it, nor can it serve as the basis for the denial of any right. This view is in accord with sound reason, and it is sustained by the following decisions of other Courts: In McKinney v.Commissioners, 26 Fla. 267, 4 So. 855, it was held that, where a bill seeks to enjoin a second election on the question of changing the location of a county seat, on the ground that it was within the time prescribed by statute regulating the subject, the bill must show that the first election was legal. In Gile v. Stegner, 92 Minn. 429, 100 N.W. 101, the same question arose under a statute which limited the right to resubmit the question to popular election until the lapse of four years from the date of the first election. An election on the question had been held to be invalid. The Court said:
"If it had been the intention of the legislature to include within the purview of the limitation attempted elections which were absolute nullities, it is presumed that it would have said so."
To the same effect see Coleman v. People, 7 Colo. App. 243,42 P. 1041, and Chambers v. Cline, 60 W. Va. 588,55 S.E. 999.
So that, though it be conceded that the first election was only voidable, since it has been adjudged to be void, it cannot have the effect of barring the second election.
(3) The next and last contention of the petitioners is based upon section 640, vol. I, Code 1912, which provides:
"Within twenty days after receipt of the report of the commission, the Governor shall order an election in the territory proposed to be cut off for the new county to be held within sixty days from the date of the order," etc.
The first election was ordered and held within the times specified. The second was not, and could not have been, under the circumstances. But this was not of the substance and did not vitiate the election, because the statute is merely *Page 291 directory; the purpose being to have the issue raised by the petition disposed of at a reasonably early time after the filing of the report. Ordinarily the time fixed by law for the holding of an election, whether it be fixed by statute or by one who is authorized by law to appoint the time, is mandatory and of the substance. But this rule is not inflexible, and elections held at other times have been sustained. This case, however, is not within that rule or its reason. The election was held at the time fixed by the order of the Governor. The time within which the order for an election shall be made is a different matter, and the effect of a variance from it rests upon different considerations. The prevailing intent of the lawmakers was that an election should be ordered and held. The specification of the time within which it should be done was of secondary consideration, and was intended not to limit the power, but to insure its timely exercise. 9 R.C.L. 998, 999; State v. South Kingstown,18 R.I. 258, 27 A. 599, 22 L.R.A. 62, 71.
Petition dismissed.
MR. ASSOCIATE JUSTICE FRASER and CIRCUIT JUDGES PRINCE, SHIPP, SEASE, RICE, BOWMAN, MAULDIN, SMITH, and PEURIFOY, concur in the opinion of the Court.