Hill v. Brown , 227 Ga. 549 ( 1971 )

Undercofler, Justice.

These cases are election contests for the offices of Mayor and Councilman of the City of Canon. The evidence shows that the appellants, respondents in the trial court, were declared elected upon a plurality of votes. The trial judge found a majority vote was required for election and ordered runoff elections. These appeals are from these judgments. Held:

1. The appellants contend that Ga. L. 1968, pp. 885, 979, as amended by Ga. L. 1970, pp. 341, 345 (§ 34A-1501, Georgia Municipal Election Code, Contest Procedure) is unconstitutional under the due process clauses of the Federal and State Constitutions because "of failure to provide for notice and opportunity for hearing to the successful candidate in a municipal election, and because of failure to require that the successful candidate be made a party thereto.”

Argued April 12, 1971 Decided May 6, 1971.

The provision of the statute attacked provides, "Upon the filing of the contest petition, a hearing shall be set before the governing authority of the municipality. Such hearing shall be conducted in accordance with procedures as set forth in the municipal charter or an appropriate ordinance, which shall be consistent with the provisions of this Code and the rules and regulations of the State Election Board.” Code Ann. §34A-1501 (a). No hearing was held by the municipal governing authority because the disqualification of certain members prevented a quorum. The contests were appealed by consent of the parties to the superior court. The appellants cannot challenge the constitutionality of a statute for failure to provide due process for a hearing which they have waived. Lamar v. Prosser, 121 Ga. 153 (48 SE 977).

2. The appellant Baskins, candidate for councilman, contends that a presumption exists that the City of Canon exercised its charter power to provide that councilmen would be elected by a plurality of votes; that the burden of proof was upon the appellee, the party contesting the election to show otherwise. We do not agree. Code Ann. § 34A-1407 provides: "(a) If the municipal charter or ordinance, as now existing or as amended subsequent to the effective date of this subsection, provides that a candidate may be nominated or elected by a plurality of the votes cast to fill such nomination or public office, such provision shall prevail. Otherwise, no candidate shall be nominated for public office in any primary or elected to public office in any election unless such candidate shall have received a majority of the votes cast to fill such nomination or public office.”

The burden was upon the appellant to show an exception to the general provisions of the Municipal Election Code requiring a majority vote. The record fails to show any such ordinance.

Judgment affirmed.

All the Justices concur, except Felton, J., who dissents. E. Freeman Leverett, for appellants. Guy B. Scott, Jr., Andrew J. Hill, Jr., for appellees.