State of Georgia v. Carswell , 78 Ga. App. 84 ( 1948 )

The law declared in the Code, §§ 34-1914, 34-1915, 34-1916, and 34-1917 (Ga. L., 1941, p. 324), is mandatory, and not merely directory; and a complete disregard by the election officials of that statute renders void and illegal a bond election in a municipality located in a county where the Secret Ballot Law has been adopted as provided by law.

DECIDED DECEMBER 1, 1948. The City Commission of Cordele, Georgia, being desirous of issuing bonds for the purpose of public improvements in the city, passed an ordinance or resolution ordering an election to be held on May 11, 1948, in order that the question of the issuance of the bonds might be submitted to the voters of Cordele. All proceedings leading up to the election were entirely regular and in accordance with the provisions of the law for the holding of elections for such purposes. At the election ballots of the type described in Code of 1933, § 34-1903, commonly known as the "Australian ballot," were used. Four separate and independent questions were submitted to the voters on each ballot, giving the voter an opportunity to vote, "For Bonds: Street Paving," or "Against Bonds: Street Paving," with like questions as to street resurfacing, school improvements and street lighting. The State of Georgia filed its petition in the Superior Court of Crisp County alleging the necessary facts and that the results of the election, certified to the Solicitor-General by the City Commission, were prima facie in favor of the issuance of the bonds and praying that the City be required to show cause why the bonds should not be issued, as by the law provided. The City of Cordele filed its answer, alleging the facts in great detail and praying for the validation of the bonds; and F. L. Carswell, Joe Burnam, and Dr. W. J. Moore, each a resident and taxpayer of Cordele, intervened, objecting to the validation of the bonds on the following grounds: first, that the election was illegal, null and void for the reason that the secret ballot law as provided by Ga. L., 1941, p. 324 (Code, §§ 34-1914-34-1917), was in full force and effect in Crisp County and the City of Cordele, such act of the legislature having been adopted by the grand jury of Crisp County, and that the election had not been conducted in accordance with the provisions of this law; second, that the city had no right to levy assessments for resurfacing of the streets of Cordele (a) because Cordele has less than twenty thousand inhabitants, (b) because the pavements were not worn out and unserviceable, (c) because the governing body took no action declaring the pavements worn out and unserviceable, and (d) because the attempt of the municipality to issue bonds was an abuse of discretion in as much as the paving was not worn out and unserviceable, but could have been easily and cheaply repaired; and third, that the bonds should not be validated and confirmed for the reason that four distinct and independent questions were submitted in one election and voted upon in a single ballot. Following the trial of the issue and the introduction of evidence for both sides, the court rendered the following judgment:

"1. That on the 11 day of May, 1948, the Secret Ballot Law found on page 324 et seq. of the printed Acts of the General Assembly of Georgia for 1941, was of full force and effect in the County of Crisp and the City of Cordele.

"2. I find that the municipal authorities of the City of Cordele and the managers of said election held on the 11th day of May, 1948, completely ignored and totally disregarded the provisions of said Secret Ballot Law and made no attempt to follow or enforce the provisions of the same, and that said election was void and illegal and conferred no right or authority upon the municipal authorities to incur the debt and issue the bonds as proposed.

"3. For the reasons above stated, the validation of said proposed bonds is hereby denied and refused."

To this judgment the State of Georgia and the City of Cordele excepted and here assign the same as error. 1. The Secret Ballot Law provides that its provisions shall not be operative in any county in the State until it is first recommended to be put into force and operation by a resolution of one grand jury. Ga. L., 1941, p. 324, 327 (Code, § 34-1917). The question here arises as to whether the grand jury's action in reference to the Secret Ballot Law was sufficient to place its provisions into force and operation in Crisp County.

It appears from the record that to the Grand Jury of Crisp County, while it was convened in January, 1948, were presented resolutions from four civic organizations, each couched in very similar terms and typical of which was the following:

"Whereas the Kiwanis Club, in a meeting assembled, has expressed a desire that the elections hereafter held in Crisp County be by secret ballot as provided in the Acts of 1941, page 324, Georgia Laws:

"Now therefore, be it resolved that the January 1948 Grand Jury of Crisp County be requested to adopt the provisions of said Act, thereby making it become the law of Crisp County providing for elections by secret ballot.

"The above foregoing resolution was adopted by the Kiwanis Club at a regular meeting held in Cordele, Georgia, on the 18th day of November, 1947." Signed: "H. H. Parker, Secretary."

The action of the Grand Jury on these four resolutions is shown in the Grand Jury presentments for the January term, 1948, of the Crisp Superior Court, as follows:

"Resolutions asking that this body take action on recommendation that this county use the Secret Form of Ballot in elections held in this county were received from the following:

"Crisp County American Legion Post 38.

"The Kiwanis Club.

"The Farm Bureau.

"Crisp County GEA.

"And these resolutions are marked Exhibits ``A', ``B', ``C' and ``D' respectively and attached hereto, and this body goes on record as being unanimously in favor of [recommending] the secret ballot form of voting [to be in force and operation in Crisp County in accordance with Ga. L. 1941, p. 324, et seq.]" The explanatory matter enclosed in brackets was added by this court to show what we think to be the clear and only meaning and effect of the action taken by the grand jury.

The Constitution of the State of Georgia, art. VII, sec. VII, par. I (Code, Ann., § 2-6001), provides that elections for the purpose of authorizing the bonded indebtedness of cities and counties shall be held as prescribed by law; and the Code of 1933, § 87-202, provides that such elections shall be held under the same rules and regulations that elections for officers of said county, municipality, or political divisions are held. Code of 1933, § 34-1902, which is expressly made applicable by the Secret Ballot Law (Code, § 34-1917) to elections held under that law, provides that the statutory procedure for elections shall be applicable to "any election, whether general, special or primary, State, county, municipal, city, town or village."

Under the facts as revealed by the record and under the provisions of the law above cited, we do not think that the court erred in holding that the Secret Ballot Law was of full force and effect in the County of Crisp and the City of Cordele on May 11, 1948 when the election in issue was held, or in holding that it applied to this election. The question of whether those provisions of the Secret Ballot Law disregarded by the election officials were such as to invalidate the election remains to be considered, however.

2. The oft-followed rule applicable to such cases as it exists in our law is: "``Where an election has been fairly and honestly conducted, it will not thereafter be invalidated by mere irregularities which are not shown to have affected the result. All provisions of the election laws are mandatory if enforcement is sought before election in a direct proceeding for that purpose; but after election they should be held directory only, in support of the result, unless of a character to obstruct the free and intelligent casting of the vote, or the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of an election, or that its omission shall render it void.'"Hastings v. Wilson, 181 Ga. 305, 307 (182 S.E. 375). See also Adair v. McElreath, 167 Ga. 294, 316 (145 S.E. 841);Hooper v. Almand, 196 Ga. 52, 81 (25 S.E.2d 778); Code of 1933, § 34-3101. The difficulty, however, arises in the application of this principle to the facts of any particular case. Where the omission is of an essential prerequisite to the holding of a valid election, such as the registration of voters or the contents of the ballot itself, the election is, of course, invalid. See, in this connection, Price v. Hodges, 172 Ga. 871 (159 S.E. 241); Goolsby v. Stephens, 155 Ga. 529 (117 S.E. 439), and cit.; Alexander v. Ryan, 202 Ga. 578 (43 S.E.2d 654). On the other hand, where the omission is only an irregularity in the conduct of the election, such as the failure to purge the registration lists, the time of closing the registration lists, the improper inspection of ballots by the election officials, or a slight variance in the form of the contents of the ballot from the published form of the contents, and where such matters are not expressly made essential to the validity of the election by statute, the election is not rendered invalid unless it is shown that the results of the election would have been different except for the irregularity. See, in this connection, Jossey v. Speer, 107 Ga. 828 (3) (33 S.E. 718); Slate v. Blue Ridge, 113 Ga. 646 (3) (38 S.E. 977);Chamlee v. Davis, 115 Ga. 266 (5) (41 S.E. 691); Coleman v. Board ofEducation, 131 Ga. 643 (9) (63 S.E. 41); Brumby v.Marietta, 132 Ga. 408 (64 S.E. 321); Brown v. Atlanta,152 Ga. 283 (4) (109 S.E. 666); Adair v. McElreath, supra;Hastings v. Wilson, supra. But where there is such an utter disregard of the provisions of the statute, as to an essential element of the election, by the election officials as to infect the election as a whole with the taint of illegality, such provisions can not be held directory merely, but must be held to be mandatory. Moon v. Seymour, 182 Ga. 702 (186 S.E. 744). It was said in this case at page 703 that: "There might be a failure of the county authorities to observe, in all particulars, the requirements of the law; and a failure to observe some of them might be held to be an irregularity. But where there is a total disregard of the statute, it can not be treated as an irregularity, but it must be held and adjudicated to be cause for declaring the election void and illegal." The final test of the legality of the election or of the ballot is whether or not the voters have been given an opportunity to express and have fairly and freely expressed their will. Hastings v. Wilson, supra. See also Adair v. McElreath and Hooper v. Almand, supra.

As was said by Chief Justice Jenkins, speaking for the Supreme Court in Alexander v. Ryan, supra, "Nothing could possibly be more important than the sanctity of the ballot." It was intended that in counties holding elections under the Australian ballot system there should be privacy in the preparation of the ticket by a voter, so that he might exercise his own volition in the choice of candidates, and that he might feel, when he is preparing his ballot to express his volition or election as to the different candidates, that he is free from all observation by the prying eyes of those who might be interested in having him vote for certain other candidates. Moon v. Seymour, supra. This system, however, lent itself to many and varied abuses. Despite the obligation of election officials to preserve the ballot box, into which the numbered stubs containing the name of each voter were placed, intact and unopened except in case of contest, these boxes formed the center of much abuse, depriving the voter of the privacy of his ballot. To remedy this manifest wrong, the legislature passed the Secret Ballot Law, which as it appears in Ga. L. 1941, p. 324, is headed and entitled as follows: "Elections — Secret Ballot. An Act to amend Chapter 34-19 of the Code of Georgia of 1933 relating to Elections by providing a new system of voting cumulative of those now in existence and providing further for asecret ballot in all primary and general elections in the State of Georgia; the qualification of candidates; and providing that the provisions of this Act shall be adopted upon the recommendation of one Grand Jury; . . to provide for certain duties of the election manager when a ballot has been challenged, and further providing that the number strip shall not be removed from the challenged ballot; to repeal conflicting laws; and for other purposes." Thus recognizing the inadequacy of the "Australian ballot" for the purpose for which it was intended, the legislature provided that any county could adopt the Secret Ballot Law and avoid any possible invasion of the privacy of the ballot. The Grand Jury of Crisp County expressed its intent that the possibility of this abuse should be eliminated in Crisp County and approved resolutions asking them to place the law into effect, thus placing the Secret Ballot Law into force and operation in Crisp County.

In order for a municipal corporation to be authorized to issue bonds and incur bonded indebtedness there must be a compliance with the essential provisions of the law. Where, as appears from the record in this case, there were no instructions upon the ballot to guide the voter in expressing his choice on the questions submitted; where the evidence shows that on at least one occasion a ballot was permitted to be taken from the polling place to be voted, without any election official accompanying the ballot; where it appears that the attention of the city authorities was called to the provisions of the Secret Ballot Law being in force in Crisp County (at some indefinite time prior to the election); where one of the managers of the election testified: "No attempt was made that I know of to change and conform to the Secret Ballot Law and it [the election] was held just like it was held last year and the year before;" and where the Clerk and Treasurer of the City of Cordele, who was also Secretary of the City Commission and Registrar of the City of Cordele and who made all the arrangements for the election, testified: "We did not attempt to conform to the recommendation of the Grand Jury in holding the election" — we think that these facts bring the case directly within the controlling rule of Moon v. Seymour, supra. There was such a total disregard of the provisions of the Secret Ballot Law that it can not be treated as a mere irregularity or noncompliance, but it must be held to be cause for declaring the election void and illegal. The trial court did not err in denying the validation of the bonds.

Judgment affirmed. Gardner and Townsend, JJ., concur.