Bergman v. Dutton , 203 Ga. 672 ( 1948 )

1. The amendment to the charter of the Town of Savannah Beach, Tybee Island (Ga. L. 1947, p. 593), is in violation of art. 3, sec. 7, par. 15 of the Constitution of 1945, and the trial court properly declared such amendment unconstitutional and void.

2. The date for holding the election for Mayor and Councilmen of the Town of Savannah Beach, Tybee Island, was April 5, 1948, and the court was without authority to enjoin the holding of such election. The order of the court fixing another or different date for the holding of such election is void.

Nos. 16170, 16174. MAY 14, 1948. F. J. Hahne filed a petition on January 8, 1948, in the Superior Court of Chatham County against Edward A. Dutton, Mayor of the Town of Savannah Beach, Tybee Island, John A. Peters and others, as Councilmen of the town, Perry Brannen and others, as Registrars of Chatham County, and Henry M. Buckley, Clerk of Council of the Town of Savannah Beach, Tybee Island, seeking a declaratory judgment as to the constitutionality of an act approved March 22, 1947 (Ga. L. 1947, pp. 593-601), amending the charter of Savannah Beach, Tybee Island. The petition, as amended, alleged: Under the act of 1939, amending the charter of the Town of Savannah Beach, Tybee Island (Ga. L. 1939, pp. 1366-1375), the right to vote in the town and to hold office included persons owning real property in the town and bona fide residents thereof. The petitioner is a resident of the City of Savannah, but an owner of real property in the Town of Savannah Beach, Tybee Island. The act of 1939 was the prevailing law at the time the petitioner became a registered voter in the town, and the present mayor and councilmen were elected in an election held under the provisions of the 1939 act. Under the act of 1947, supra, the right to register and vote and to hold office in the election to be held the first Monday in April, 1948, is limited to bona fide residents of the Town of Savannah Beach, Tybee Island; and if the act of 1947 is a valid and constitutional act, the petitioner and other persons now on the voters' list by virtue of being owners of real property in the town will be stricken therefrom. The enrolled bill (1947 amendment) does not contain either a copy of the publisher's notice certified to by the publisher or accompanied by an affidavit of the author to the effect that the bill has been published as provided by law; and under the Constitution of Georgia, art. 3, sec. 7, par. 15, as interpreted by the Supreme Court in the case of Smith v. McMichael, 203 Ga. 74 (45 S.E.2d 431), the act is null and void. Because of the uncertainty that has arisen as to the validity of the act of 1947, the following controversies have arisen: Whether or not the primary provided for under the act of 1939 has been abolished, and whether or not the Executive Committee charged with the duty under the law of calling a primary is still cast with that duty, or whether the Executive Committee under the act of 1947 has ceased to exist; whether or not it is the duty of the Clerk of Council to open his registration books for the benefit of residents of Chatham County owning property at Savannah Beach, Tybee Island; whether or not residents of Chatham County owning property in Savannah Beach, Tybee Island, but not being actual residents thereof, still have the right to vote or to hold office, and what the duty of the Clerk of Council is in relation thereto; whether or not it is the duty of the Board of Registrars of Chatham County to strike from the registration rolls the names of all persons not registered as voters under the terms of the 1947 act; whether the act of 1947, providing that all six councilmen shall be bona fide residents of the town, has superseded the act of 1939, requiring that three must be property owners and three residents; whether or not the 1947 act has been validly passed and properly engrossed; whether the Executive Committee provided for under the act of 1939 still remains and is to be voted upon in the next election, or whether the 1947 act has abolished the Executive Committee. Unless the act of 1947 is held to be invalid, no primary can be held in March, 1948, under the 1939 amendment, and much confusion would result as to the rights of people to vote and hold office. The same uncertainty and confusion would arise in reference to the regular election to be held in April, 1948. A great state of chaos and confusion will result from the acts of newly elected officials in the collection of taxes and the punishment of persons charged with crimes. By one amendment, Savannah Beach, Tybee Island, was made a party defendant.

The petition, as amended, prayed that: The court entertain jurisdiction of the matter and render a declaratory judgment determining whether or not the act of 1947 was validly enacted, and whether or not the act has become the law of this State and is the governing act regulating the right to register, vote, and hold office in the municipality; the court determine the rights of the petitioner in reference to his right to register, vote, and hold office; the court pass such necessary orders and decrees to enforce its judgment; any interested person of Chatham County be permitted to intervene in the case; rule nisi issue; the Attorney General be served; the court grant such equitable relief as may be necessary in regard to elections and government of the municipality pending the determination of the issues. On the same date the court issued an order to show cause on January 30, and allowed any citizen of Chatham County to intervene in the cause.

On January 27, 1948, John A. Bergman filed an intervention in resistance to the petition, alleging that he is a property owner, taxpayer, and bona fide resident of the Town of Savannah Beach, Tybee Island, and is entitled to voting and office-holding privileges under the act of 1947. The intervention contended that the act of 1947 was duly passed, duly approved by the Governor, and became a valid act, and there was a substantial compliance with all of the requirements of the Constitution and Code. Attached to the intervention was a photostatic copy of the bill to which was attached the affidavit of the publisher that notice of the bill was published in the Morning News Inc., a newspaper of general circulation in Chatham County. Also attached was a photostatic copy of the enrolled act, on which the notation, "Certificate of Publication Attached to Original Bill," appeared prior to the signatures of the officers of the Senate and House of Representatives and approval of the Governor. The intervenor set out his contentions as to why the 1947 act was constitutional. The intervention, as amended, was allowed to be filed, and Bergman made a party to the proceedings.

On January 29, 1948, William Edward Sickel filed an intervention in support of the prayers of the original petition of Hahne. He alleged that he was a property owner and taxpayer in the Town of Savannah Beach, Tybee Island, resident elsewhere in Chatham County. By proper order of the court he was made a party to the proceedings.

On January 12, 1948, the court passed an order, reciting that pending the determination of the validity of the 1947 amendment to the charter of Savannah Beach, Tybee Island, registration of voters under both the 1939 amendment and 1947 amendment should be allowed, the nonresident voters to be stricken from the permanent voters' list in the event the 1947 act be finally adjudicated to be valid.

On January 27, 1948, F. J. Hahne filed a demurrer to the intervention of John A. Bergman, and moved to strike the portion of the intervention setting out the contents of the original bill, and the certified copy of the original bill attached as an exhibit, on the ground that only the enrolled bill can be examined to determine the validity of the act, and that the contents of the original bill are inadmissible. Other allegations of the intervention were attacked on the ground of being conclusions of the pleader, irrelevant, inadmissible and immaterial, in view of the ruling of the Supreme Court in Smith v. McMichael, supra. The demurrer was overruled by the court on January 30.

The defendants in the original action, Edward A. Dutton and the members of the Council and Clerk of the Council, filed a general demurrer to the petition of Hahne on January 29, which was overruled by the court on January 30.

The officials of the municipality, in their answer to the petition of Hahne, admitted the facts set out in the petition, but did not admit the conclusion that the 1947 act is invalid, and showed that in their capacity as officials of the municipality that they were required to recognize the 1947 act until it is declared invalid by the court. They prayed instruction by the court in the matter.

The municipality of Savannah Beach, Tybee Island, in its answer, admitted the facts set forth in the petition, but did not admit the conclusion that the 1947 act is not a valid act.

The Registrars of Chatham County, in their answer, admitted the facts set forth in the opinion, but did not admit that the 1947 act has been rendered null and void because the enrolled copy failed to show that it was properly advertised, other than by the statement appearing thereon as shown in the exhibit attached to the petition. They showed how a decision as to the validity of the law would affect their duties as registrars, and requested instruction from the court.

At the hearing on the cause, on January 30, counsel for the parties agreed on certain stipulations of facts. The allegations of the parties as to their residence and interest in the case were admitted. It was agreed that the certified copy of the enrolled act was correct, and admission of it was without objection. The admission of the copy of the original bill was objected to by counsel for the original petitioner. It was agreed that a state of confusion existed as to the duties of the town officials and the registrars in regard to registration lists and qualifications for voting in the municipality.

In the declaratory judgment rendered by the court, it was held that the act of 1947, amending the charter of Savannah Beach, Tybee Island, is unconstitutional and void, as violative of the provisions of the Constitution, art. 3, sec. 7, par. 15. It was further ordered that, if the case should be appealed to either of the appellate courts, there should be no election in Savannah Beach, Tybee Island, until judgment is rendered by the proper appellate court; that, upon final judgment being rendered by the appellate court, an election shall be called by the Mayor and Aldermen of Savannah Beach, Tybee Island, to be held within not less than twenty days nor more than thirty days after the date of the entering of the remittitur on such judgment, the election to be held in accordance with the act that is held valid and effective by the appellate court, and in accordance with any direction given by such court.

The intervenor, John A. Bergman, brought a bill of exceptions to this court, naming himself as plaintiff in error, and all of the other parties in the case as defendants in error. He excepted to the rulings of the court holding the act of 1947 to be invalid. He also sought leave to file a request for review, modification, distinction, and reversal of the decisions inSmith v. McMichael, supra; Cox v. Hapeville, 203 Ga. 263 (46 S.E.2d 122), and any other cases following the decisions in the two cases named. The leave to file was allowed, and the petition filed.

Edward A. Dutton, John A. Peters, Morris Slotin, William S. Lovell, Mitchell R. Young, James A. Brown, B. P. Hosti, Henry M. Buckley, and Savannah Beach, Tybee Island, filed a cross-bill of exceptions, naming themselves as plaintiffs in error, and naming John A. Bergman, William Edward Sickel, and F. J. Hahne as defendants in error. They assigned error on the order overruling their demurrer, and to that portion of the order of the court ordering the calling of an election between twenty and thirty days after the remittitur of this court is received in the lower court. It is contended that the judge of the superior court is not authorized to order an election of officials on any other date than that fixed in the charter of the municipality as it existed prior to 1947. 1. The bill of exceptions in this case assigns error on a judgment of the Superior Court of Chatham County, holding unconstitutional and void an act of the General Assembly amending the charter of the Town of Savannah Beach, Tybee Island (Ga. L. 1947, pp. 593-601). Counsel for the plaintiff in error concede that the judgment holding the act unconstitutional follows the judgment of this court in Smith v. McMichael,203 Ga. 74, and Cox v. Hapeville, 203 Ga. 263, but it is contended that the act amending the charter of the Town of Savannah Beach, Tybee Island, showed substantial compliance with the requirements of art. 3, sec. 7, par. 15 of the Constitution of 1945, and that the judgment of the lower court should therefore be reversed. The distinction relied upon by counsel appears in the record from certified copies of the enrolled act and the original bill. The enrolled act contains the words, "Certificate of publication attached to original bill," and the certified copy of the original bill has attached thereto a copy of a published notice, and affidavit by the publisher that the notice was published on December 28, 1946, and on January 3 and January 10, 1947.

In Smith v. McMichael, supra, it was stated that the Constitution of 1877 contained a provision in general terms requiring the publication of notice to introduce local legislation, the specific requirement being fixed by statute, which required publication and posting at the courthouse door, and that, under the law as it existed prior to the Constitution of 1945, a properly enrolled act of the legislature was conclusively presumed to have been enacted in accordance with all constitutional requirements, and it was not permissible to show to the contrary. The court then stated in part: "In the new law [Constitution of 1945] the proof of notice speaks for itself, with the result that under the new law the record of the bill as enrolled provides its own proof as to the prescribed notice, and there is no room for any presumption or other form of proof." If, as appears to be the contention in this case, the enrolling clerk failed to copy the proof of advertising attached to the original bill into the enrolled act, no form of proof can be introduced so as to prevent the enrolled act from being in conflict with the Constitution, art. 3, sec. 7, par. 15. This court fully considered just such a possibility as that which appears to be the basis for the contention that a distinction should be made in this case (failure by an enrolling clerk to copy the proof of advertising) in Smith v. McMichael, and there held that such failure, under the Constitution, would not permit any form of proof to supply that which the enrolled act did not contain, proof of advertising. The rulings of this court in Smith v.McMichael were followed in Cox v. Hapeville, supra, and again in Smith v. Augusta, 203 Ga. 511 (47 S.E.2d 582), decided since the oral argument in this case, wherein it was stated by the court in part as follows: "The Constitution makes no exception [that the enrolled act must contain proof of publication], but applies alike to any and all local or special bills, and in obedience to the Constitution this court will make no exception." On review, this court is convinced that its decisions in the cases cited (which counsel request the court to overrule) are not at variance with the mandatory provisions of the Constitution, art. 3, sec. 7, par. 15. The motion to overrule is denied. The judgment of the trial court holding the act amending the charter of the Town of Savannah Beach, Tybee Island (Ga. L. 1947, pp. 593-601), unconstitutional and void is affirmed.

2. In the cross-bill of exceptions error is assigned on that part of the court's order which enjoined the holding of the regular election at the time set by law for the election of Mayor and Councilmen for the Town of Savannah Beach, Tybee Island; and the further order that the election for such officials be held after the remittitur is received from this court. The trial court's order enjoining the holding of the election provides in part: "Since the case involves an election, the qualification of candidates and electors, and many questions of great importance to its citizens, the court believes that in the public interest there should be no election held until the Supreme Court has passed upon the issue here involved." The issue before the court was whether or not the qualifications of candidates, electors, and other matters pertaining to the election should be controlled by the amendment of 1947 to the charter, or, as provided by the act incorporating the town, and the several amendments thereto, prior to 1947 (and more particularly the amendment of 1939, Ga. L. 1939, p. 1366, which granted to persons residing outside of the town but in the county, who owned real estate in the town, the right to vote and hold office).

It is clear from the judgment of the trial court that the only act held or declared to be invalid was the amendatory act of 1947, which the trial court held unconstitutional and void, and which judgment this court has affirmed. The regular election for mayor and councilmen, if held on the regular date, would therefore be conducted under the laws controlling such election prior to the void act of 1947. Since no other law or act involving the election was attacked or declared invalid, we are called upon to pass upon the right of a trial judge to enjoin the holding of an election in a municipality under valid laws and ordinances (the invalid act of 1947 having been stricken down by the trial court).

The general rule in this country is that the holding of elections is a political matter not ordinarily cognizable in a court of equity. Exceptions to the general rule are those elections proposed to be held under a void law or ordinance, involving an unlawful expenditure of public funds, or a violation of private rights. 18 Am. Jur., p. 254, § 117. In Ogburn v.Elmore, 121 Ga. 72, 73 (48 S.E. 702), the rule is stated: "Elections by the people, either for the choice of public officers, or for the determination of other matters submitted to the popular vote, being the exercise of the political power, the general rule is that a court of equity will not interfere in any matter concerning the same. However, if under the guise of an election which is really unauthorized by law, the property or person of the citizen is imperiled, equity will interfere." For cases applying the general rule that equity will not interfere with the holding of elections, see: Harris v. Sheffield,128 Ga. 303 (57 S.E. 305); Printup v. Adkins, 150 Ga. 347 (103 S.E. 843); Avery v. Hale, 167 Ga. 252, 254 (145 S.E. 76); Sibley v. Park, 175 Ga. 846 (166 S.E. 212). The exception to the general rule was applied in Macon v. Hughes,110 Ga. 795 (36 S.E. 247); Town of Roswell v. Ezzard,128 Ga. 43 (57 S.E. 114); Town of Maysville v. Smith,132 Ga. 316 (64 S.E. 131); Tolbert v. Long, 134 Ga. 292 (67 S.E. 826, 137 Am. St. Rep. 222); Marbut v. Hollingshead,172 Ga. 531 (158 S.E. 28).

This case presents no exception to the general rule. Valid laws governing the election of officials of the Town of Savannah Beach, Tybee Island, were of full force and effect. (See Harris v. McMillan, 186 Ga. 529, 198 S.E. 250, where the act of 1939, amending the charter of the town, was sustained by this court.) The contingency that this court might reverse its position and overrule certain of its own decisions, so as to reverse the judgment declaring invalid the act of 1947, amending the charter of the Town of Savannah Beach, Tybee Island, was not sufficient cause for enjoining the holding of the election on the date provided by law. Nor can any election be held under the order of the court which purports to provide for an election at a later date. The charter amendment of 1922 (Ga. L. 1922, p. 987) provides that under that amendment the first election for mayor and councilmen of the municipality shall be held on the first Monday in April, 1924, and every two years thereafter. The only lawful election that could have been held for the election of mayor and councilmen was on the first Monday in April, and the judiciary of this State can not provide another or different date for the election. If the General Assembly sees fit to provide a special election for the selection of mayor and councilmen, prior to the first Monday in April, 1950, it may do so. Otherwise, "the mayor and councilmen shall hold their respective offices until their successors are duly elected and qualified." Ga. L. 1922, p. 987, § 3. That part of the court's judgment excepted to in the cross-bill of exceptions is reversed.

Judgment affirmed on the main bill of exceptions, andreversed on the cross-bill. All the Justices concur.