I respectfully dissent from the conclusions reached in the opinion prepared by Mr. Associate Justice Baker in this case. As I view the facts and the law, the petition for a writ of mandamus should be denied.
The facts are fully stated in Justice Baker's opinion. From this statement it appears that the municipal general election for the Town of Blacksburg was duly advertised, the registration books were opened, the managers of such election duly appointed, ballots printed and provided, and on the day appointed for the general election, the polls were opened and kept open and available for the purpose of voting during the hours provided for by law. No citizen of the town, not even those who had been nominated in the primary for the offices of mayor and aldermen, registered to vote, hence there were no qualified voters, and no one voted.
No fraud, default or neglect of duty is charged against the town council in the functioning of the election machinery. The failure on the part of the citizens to vote resulted solely from their neglect to procure the necessary municipal registration certificate. It is suggested in the petition for the writ *Page 83 of mandamus that this being the first general election held under a new law which divided the town into wards, the petitioners were ignorant of the legal requirements to vote in the general election, and were under the impression that a voter qualified to vote in the primary election was qualified to vote in the general election.
Under these circumstances, should a writ be issued against the present holdover town council to do that which it is admitted they have already legally done?
It is stated in Justice Baker's opinion that "the effect of the annulment of an election is to declare that a vacancy exists in the office for which the election was attempted to be held, if such annulled election was attempted to be held at the time designated by law." And State ex rel. Whisonantet al. v. Belue, Mayor, 138 S.C. 393, 136 S.E., 641, is cited as authority.
In the case of State ex rel. Whisonant v. Belue, which involved a contested municipal election in the Town of Blacksburg in the year 1926, the election was judicially annulled upon the ground of fraud. In the current controversy an entirely different situation is presented. Although everything had been done as required by law for the holding of the election, no voter possessed the proper credentials to qualify him to vote. In this state of affairs, the election officials were in no sense responsible.
In my opinion, the facts and issues presented in the case of State ex rel. Harrelson v. Williams, Mayor, 157 S.C. 290,154 S.E., 164, are not analogous to this case. In theHarrelson case, the election was duly held, participated in by properly registered voters. Another election was ordered to be held for the sole reason that Mr. Jordon, the nominee for mayor, and who was elected in the general election, was not eligible to hold office, because he did not possess a municipal registration certificate. In view of these circumstances, the Court held that a vacancy existed. *Page 84
Nor do I think that the ordering of another election is authorized under Section 7428 of the Code, which provides: "In case a vacancy occurs in the office of mayor or alderman, by death, resignation or otherwise, all elections to fill such vacancies shall be held in the same manner and after the same notice as hereinafter provided in articles 4 and 5, respectively. Should the vacancy occur within sixty days of the regular election it shall be left to the discretion of the council whether or not they shall order an election to fill the vacancy. * * * "
It seems to me to be clear that the vacancy referred to in the foregoing section is a vacancy which occurs during the regular tenure of office, and not to a regular, general election at which an entire municipal council is elected.
We may sympathize with the plight of the citizens of Blacksburg who failed to inform themselves of the legal requirements to vote, and who now say that if given another opportunity they will duly exercise the right of suffrage; but I do not believe that the Court under the facts and circumstances here, can afford them any relief.
For the reasons above mentioned, I think the writ of mandamus should be denied.