Jones v. Fortson , 223 Ga. 7 ( 1967 )

Almand, Presiding Justice.

We are called upon by this appeal to review the order of the trial judge denying the prayers of the appellants that Ben W. Fortson, Jr., as Secretary of State of the State of Georgia, be enjoined “from causing to be laid before the Senate of the State of Georgia the returns of the incomplete general election for Governor held on November 8, 1966; from causing to be laid before the Senate of the State of Georgia any such returns which do not include the returns of a runoff held as required by law; and, from issuing a commission of election to any candidate for the office of Governor until a runoff is held” and that “the court enter its order that a runoff election for Governor shall be held between the two candidates receiving a highest number of votes in the voting on November 8, 1966, and fix the date for such runoff election,” and sustaining the appellee’s motion to dismiss.

Error is enumerated on this order.

This case is an action by qualified voters and taxpayers in equity against Ben W. Fortson, Jr., as Secretary of State of Georgia. The appellants’ statement of the case and the issue therein made and here for review is fair and accurate, and we adopt it.

“The trial court had before it plaintiffs’ prayer for an interlocutory injunction and defendant’s motion to dismiss. The case below was heard on the basis of the facts stated in the verified petition of plaintiffs and four stipulations as stated in the trial court’s order. These facts from the petition and stipulation are summarized as follows.

“Plaintiffs are residents of Fulton County, Georgia, and are citizens of Georgia. All of plaintiffs are duly registered and qualified electors qualified to vote in the general election held on November 8, 1966, and in any runoff that might be held in order to complete the election process with respect to the office of Governor. The defendant is Ben W. Fortson, Jr., as Secretary of State'of the State of Georgia.

“On November 8, 1966, a voting took place as a part of the process provided by law for the election of a Governor. On the ballots of said voting were the names of two candidates, Howard H. Callaway and Lester G. Maddox. Neither of said candidates nor any other said candidate received a majority of the votes cast on November 8, 1966. Out of a total of more than 958,177 votes cast, Mr. Callaway received 453,685 votes, Mr. Maddox received 450,900 votes, Ellis Arnall received 52,898 votes and others received a total of at least 691 votes. These figures are matters of public records maintained in the offices of the ordinaries in the various counties of this State as required by law.

“No runoff for the office of Governor has been held and defendant Fortson has taken no affirmative steps toward holding a runoff.

“Defendant Forston has publicly stated his intention to cause to be laid before the Senate of Georgia on January 10, 1967, the returns of the incomplete election instead of the returns of the runoff and will do so unless enjoined. When the returns of the incomplete election are laid before the Senate of the State of Georgia, the General Assembly will then, in accordance with the announced intention of legislative leaders and members in general, proceed to purport to elect a Governor. Defendant Fortson will then, unless enjoined, issue a commission to the candidate so chosen by the General Assembly.

“Defendant Fortson, as duly elected Secretary of the State of Georgia, has served as Secretary of the State of Georgia continuously since February 5, 1946, and has served as an ex officio member of Election Laws Study Committees and was elected and served as Chairman of such Committees.

“Attached to Stipulation 3 is a copy of part of Senate Bill Number 1 introduced in the May-June 1964 Extraordinary Session of the Georgia General Assembly (Georgia Election Code) with certain marginal notations.”

Stipulation 3 sets out the procedure pursuant to which the returns for election of Governor and certain other State officers are made by the ordinaries, transmitted (sealed, in the case of the Governor) to the Secretary of State, and, finally, transmitted by the Secretary of State to the Senate. Exhibit “B” to said stipulation is a copy of the Consolidated County Returns form and envelope used in the transmission of these returns in the election of Governor.

“The specific issues presented are whether the trial court erred in refusing to grant an interlocutory injunction as prayed, and in dismissing the petition and motion. The legal questions involved are as follows: A. Does the runoff provision of the Georgia Election Code, construed in relation to other pertinent statutory provisions, apply to the election of Governor? B. Is such provision as so applied prohibited by Paragraphs II, III and IV of Article V, Section I, of the Georgia Constitution? . . .”

The controlling question is whether Sec. 34-1514 of the Georgia Election Code (Ga. L. 1964, Ex. Sess., pp. 26, 174; Code Ann. § 34-1514), providing for the rules and regulations in the election of the Governor, is in irreconcilable conflict with Art. V. Sec. I of the Georgia Constitution of 1945 (Code Ann. Ch. 2-30). To find this answer we lay them side by side.

First, the provisions of the Constitution:

“The first election for Governor, under this Constitution, shall be held on Tuesday after the first Monday in November of 1946, and the Governor-elect shall be installed in office at the next session of the General Assembly. An election shall take place quadrennially thereafter, on said date, until another date be fixed by the General Assembly. Said election shall be held at the places of holding general elections in the several counties of this State, in the manner prescribed for the election of members of the General Assembly, and the electors shall be the same.” Ga. Constitution, Art. Y, Sec. I, Par. II (Code Ann. § 2-3002).

“The returns for every election of Governor shall be sealed up by the managers, separately from other returns, and directed to the President of the Senate and Speaker of the House of Representatives, and transmitted to the Secretary of State, who shall, without opening said returns, cause the same to be laid before the Senate on the day after the two houses shall have been organized, and they shall be transmitted by the Senate to the House of Representatives.” Constitution, Art. V, Sec. I, Par. Ill (Code Ann. § 2-3003).

“The members of each branch of the General Assembly shall convene in the Representative Hall, and the President of the Senate and Speaker of the House of Representatives shall open and publish the returns in the presence and under the direction of the General Asembly; and the person having the majority of the whole number of votes, shall be declared duly elected Governor of this State; but, if no person shall have such majority, then from the two persons having the highest number of votes, who shall be in life, and shall not decline an election at the time appointed for the General Assembly to elect, the General Assembly shall immediately, elect a Governor viva voce; and in all cases of election of a Governor by the General Assembly, a majority of the members present shall be necessary to a choice.” Constitution, Art. V, Sec. I, Par. IV (Code Ann. § 2-3004).

Second, the provisions of the Georgia Election Code of 1964: “This Code shall apply to any general or special election in this State to fill any Federal, State or county office, and to any general or special primary to nominate candidates for any such office, and to any Federal, State or county election or primary for any other purpose whatsoever: Provided, however, it shall not apply to any municipal primary or election.” Ga. L. 1964, Ex. Sess., pp. 26, 28 (Code Ann. § 34-102).

“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. In instances where no candidate receives a majority of the votes cast, a runoff primary or election shall be held, between the two candidates receiving the highest number of votes, on the 14th day after the day of holding the first primary or election, unless such runoff date is postponed by court order. The candidate receiving a majority of the votes cast in such runoff primary or election to fill the nomination or public office he seeks shall be declared the winner. Only the electors entitled to vote in the first primary or election shall be entitled to vote in any runoff primary or election resulting therefrom; . . .” Ga. L. 1964, Ex. Sess., pp. 26, 174 (Code Ann. § 34-1614).

Neither counsel for the appellants nor for the appellees dispute the rules of law that (a) the General Assembly of this State has the power to enact any legislation affecting the people of Georgia which is consistent with the Constitution of Georgia and not repugnant to the Constitution of the United States, or (b) that a statute of the General Assembly which is in plain and irreconcilable conflict with an express provision of the State Constitution must yield to the Constitution as the supreme law. So we look to Article V of the Constitution to determine whether Election Code Sec. 34-1514 is in harmony with or in irreconcilable conflict with said article.

Over a long period of years this court and other courts in the several States have considered and laid down rules which have been accepted as correct and proper in determining if there is or is not an irreconcilable conflict between the constitution and a statute. In 16 AmJur2d 228-229, Constitutional Law, § 56, it is stated: “It is the obvious duty of the legislature to act in subordination to the state constitution, for with reference to the subjects upon which the constitution assumes to speak, its declarations and necessary implications are conclusive upon, the legislature. Thus, constitutional provisions prevent the enactment of any law which extinguishes or limits the powers conferred by the constitution.”

In 16 CJS 208, Constitutional Law, § 70, it is stated: “A provision which expressly prescribes the manner of doing a particular thing is exclusive in that regard and impliedly prohibits performance in a substantially different manner. Thus, where the manner in which, or the means by which, a power granted shall be exercised are specified, such manner or means are exclusive of all others, and the right or power to use other means does not arise by implication even though considered more convenient or effective. Where the constitution defines the circumstances under which a right may be exercised, the specification is an implied prohibition against legislative interference to add to the condition. A constitutional provision directing the legislature to enact particular legislation carries no authority to enact something not -included therein.” In support of this conclusion the following cases are cited: Weinberger v. Board of Public Instruction of St. Johns County, 93 Fla. 470 (112 S 253), which holds that the legislature does not have the power to enact a law which by its own terms conflicts with a provision of the state constitution prescribing the doing of an act or arriving at a decision, the constitutional method being exclusive; In re Opinion of the Justices, 294 Mass. 610 (3 NE2d 12), which holds that where the constitution gives clear and minute directions as to the performance of a specific duty it can be performed in that way alone; Sturgis v. Spofford, 45 N. Y. 446, which holds that constitutional provisions for organizing the three departments of government exclude any other mode.

Under our Constitution and the decisions of this court, the State Constitution is superior in authority to an Act of the legislature in conflict with the Constitution, so where there is any conflict between a' statute and the Constitution the provisions of the latter control. Constitution, Art. XII, Sec. I, Par. II (Code Ann. § 2-8002).

This court, in Copland v. Wohlwender, 197 Ga. 782, 787 (30 SE2d 462), stated: “It is insisted that the Code, § 24-2903, is controlling. This section provides that ‘vacancies occur and are filled as prescribed in cases of the judges of the superior courts, and the manner of proceeding is in every respect the same.’ This section of the Code is a part of the chapter dealing with solicitors general. If this Code section is in conflict with the provisions of the Constitution relative to filling vacancies in the office of solicitors general, it must yield to the Constitution. ‘The provisions of the Constitution are fundamental and controlling.’ Wood v. Arnall, 189 Ga. 362 (6 SE2d 722). Therefore, this Code section is not applicable to the case under consideration.”

In Massenburg v. Bd. of Commrs. of Bibb County, 96 Ga. 614, 617 (23 SE 998), this court held: “A constitutional office may become such, either by virtue of its creation as such by express provisions of the Constitution, or, being already in existence as a legislative office, it be established and recognized, and the term and mode of selection be prescribed by a Constitution adopted subsequent to its creation by the legislature; it then becomes a constitutional office, and thereafter not subject to control or modification by legislative enactment. Where the Constitution prescribes the manner in which a particular public functionary is to be elected, or prescribes the terms during which he shall hold office, the legislature is1 thereafter powerless to modify, enlarge or diminish that which is established by the Constitution. It has no power to shorten the term of a constitutional office (Howard v. State, 10 Ind. 99; Cotton v. Ellis, 7 Jones (N. C.), 545; State v. Askew, 48 Ark. 82); nor practically abolish the office by repealing provision for salary (Reid v. Smoulter (Pa.), 18 Atlantic Reporter, 445); nor extend the constitutional term (People v. Bull, 46 N. Y. 57; Goodin v. Thoman, 10 Kan. 191; State v. Brewster, 44 Ohio St. 589); nor provide for the choice of officers a different mode from that prescribed by the Constitution (People v. Raymond, 37 N. Y. 428; Devoy v. New York, 35 Barb. 264; 22 How. Pr. 226; People v. Blake, 49 Barb. 9; People v. Albertson, 55 N. Y. 50). If, therefore, the people in their sovereign capacity, in convention assembled, do by the terms of an organic law, established by them and for them, reserve unto themselves the right of election to particular offices, the legislature cannot thereafter interfere with this reserved right and provide other means than those established by the Constitution for the election of incumbents to such offices, even though there be no negation of this right of legislative interference expressly stated in the terms of the Constitution. The reservation of the right itself is a sufficient safeguard against the encroachments of legislative power, inasmuch as such reservation of itself operates as a denial to the legislature of the right of interference. The legislative powers, with respect to subjects left under the legislative control, are coextensive with the limits of the State, and are circumscribed only by the wise discretion of the General Assembly itself; but respecting those rights and those things concerning which the Constitution has itself made provision, the legislature is without power.”

In Morris v. Glover, 121 Ga. 751, 754 (49 SE 786), it was said: “Likewise, an office created by statute, but not defined in or recognized by the Constitution, may be abrogated by statute. But where an office is created or guarded by express constitutional provision, its scope can not be enlarged or lessened by statute, nor can the office be filled in any manner other than that prescribed by the Constitution.”

An election for Governor of Georgia was held on Tuesday after the first Monday in November 1966, as provided in Par. II of Sec. I of Art. V of the Constitution of 1945. Paragraphs III and IV of that section and article provide that the returns for the election of Governor “shall be sealed up by the managers, separately from other returns, and directed to the President of the Senate and Speaker of the House of Representatives, and transmitted to the Secretary of State” (Par. Ill), who without opening them shall cause them to be laid before the Senate on the day after the two houses shall have been organized, the Senate shall transmit them to the House of Representatives, and on such day the Senate and House shall convene in joint session and open and publish the returns. If it shall be determined that a person has a majority of the whole number of votes he shall be declared the duly elected Governor of the State, “but, if no person shall have such majority, then from the two persons having the highest number of votes, who shall be in life, and shall not decline an election at the time appointed for the General Assembly to elect, the General Assembly shall immediately, elect a Governor viva voce” (Par. IV) by a majority of the members present. (Emphasis supplied.)

In our opinion it is plain and certain that where the canvassed returns show no person received a majority of the votes cast in the general election held on the date appointed by the Constitution, Art. V reserves to the General Assembly the power and right, by the Vote of a majority of the members present on the date the returns from such election are submitted to it, to elect a Governor from the two persons having the highest number of votes. The provisions of section 34-1514 of the Georgia Election Code of 1964 do not apply to the election of Governor where no person in the general election receives a majority of the votes — the “runoff” or selection between the two highest being reserved by the Constitution to the members of the General Assembly.

The court did not err in denying an injunction and dismissing the petition.

Judgment affirmed.

All the Justices concur, except Duck-worth, C. J., and Cook, J., who dissent.