The case of the petitioner rests upon the allegations that the was declared by the county executive committee of the Democratic party the nominee for the office of treasurer of Georgetown county on 29th August 1912, and that the action of the county committee in revoking this declaration and declaring the respondent the nominee was without legal effect, for the reason that the party rules require that notice of protest must be filed within two days after the election, whereas, the respondent did not file his notice of protest *Page 327 until 9th September, 1912, fourteen days after the election. On this ground the petitioner insists that the State executive committee disregarded the plain mandate of the party Constitution and rules when it dismissed his appeal from the last declaration of the county committee in favor of the respondent.
When the contest of respondent came on for a hearing, the petitioner objected to the jurisdiction of the committee on the ground that only under a notice of protest filed two days after the election could the committee entertain the controversy. When this objection was overruled, the petitioner contested the matter before the committee on the merits. The question whether enter in into the merits under these conditions was a waiver of the objection to the jurisdiction is an important one, when it is considered that both the county executive committee and the State executive committee are special tribunals, and that if the petitioner had refused to enter into the merits and allowed the matter to go by default against him, he would have been at a great disadvantage before the State executive committee in the presentation of this appeal. It is true that it has been held in Garrett v. Hearing Co., 69 S.C. 278, 48 S.E. 254, and a number of other cases, that if a defendant pleads to the merits after his plea to the jurisdiction has been overruled, that the plea to the jurisdiction will be regarded waived. But the rule is a hard one, and should not be extended. It has been limited by the recent case of Barfield v. So. Cotton Oil Co., 87 S.C. 322, 69 S.E. 603, and it should not be extended to special tribunals where, as in this case, it is not perfectly clear that the power exists to grant full relief from errors as to the jurisdiction.
But there are other grounds on which it seems to me perfectly clear that the petition should be dismissed. There can be no doubt that by the statute enacted on the subject, the General Assembly intended to give primary elections a legal status, and it follows that the persons interested therein *Page 328 have a right to the writ of certiorari when the tribunals designated by the party law for the decision of controversies have not proceeded according to the statute law and the rules and constitution of the party which have been given by the statute the force of law. But it ought to be a clear case of infringement of the party rules to warrant the Court in interfering, especially when the ground of complaint relates to party procedure rather than the substance of the matter. It would require a forced construction of the rule that notice of protest should be filed within two days after the election, to make it apply to this case. The respondent, McConnell, on the face of the returns made by the mangers, was the nominee, and it could not have been contemplated by the rule that he should file a notice of contest within two days after the election, and thus attack the validity of an election in which he was prima facie successful. It seems clear, therefore, that rule 7, requiring notice of protest to be filed within two days after the election, did not apply, that there was no rule which covered the case, that McConnell was entitled to reasonable time after the recount, and that prima facie the Court should accept the conclusion of the party authorities as to the reasonableness of the time within which the respondent might attack the election for fraud.
There is another view equally strong against the petitioner. Although the returns of the mangers indicated the election of McConnell, no protest was filed by Hemingway; but two days after the election the county executive committee met and, at the instance of Hemingway, made a recount of the votes in certain boxes. Under this recount Hemingway was declared elected. McConnell was present and made no objection to the recount or the declaration in favor of Hemingway. But ten or twelve days afterwards he served notice of appeal to the State committee. This appeal carried the whole matter, including the issues of fact, to the State committee and gave them jurisdiction to pass *Page 329 upon the election, even if the notice of protest fourteen days after the election was given too late by the respondent to avail him before the county committee. It is true that the action of the State committee was in favor of a dismissal of the appeal of Hemingway form the action and declaring McConnell to be the nominee. But both appeals raised questions of fact on which the result of the election depended, and the dismissal of one meant the sustaining of the other. Looking away from the form to the substance, the State committee had before it an appeal by respondent from the county committee involving the question whether as a matter of fact the county committee should have declared the petitioner or the respondent the party nominee, and their decision, whatever its form, on that issue of fact, was final under the Constitution and rules of the party.
For these reasons I think the petition should be dismissed.
MR. JUSTICE HYDRICK concurs.