Ray v. Swain , 1918 Ga. LEXIS 261 ( 1918 )

Gilbert, J.

A petition signed by nineteen qualified voters of Ebenezer school district, Warren county, requesting that an election bs held in that district for the purpose of supplementing the public-school tax by an extra tax levy in said district was presented to the ordinary of said county. The following entry was made upon the petition: “Georgia, Warren County, June 27, 1916, P. M. Hill, Ordinary.” Notices were posted as required by law, bearing date June 19, 1916, and purporting to be signed by the ordinary. An election was held in said district on the fifteenth day of the next month. The return showing the result of the election to be in favor of the tax was filed in the office of the ordinary and marked “Approved July 17, 1916.” No order of the ordinary calling the election was found in the office of the ordinary or produced at the trial, and it was agreed by the parties that the records of the office contained no mention of such an order. Plaintiffs filed a petition in the superior court, seeking to enjoin tho assessment, levy, and collection of the-tax, on the grounds: (1) That the election was void, because held within less than twenty days from the receipt of the petition by the ordinary, whereas the law requires that the election be held not less than twenty nor more than sixty days from the receipt of such petition. (2) That the petition did not show on its face that it contained the signatures of one fourth of the qualified voters of the district; and this fact is jurisdictional and can not be supplied by aliunde evidence; and the court erred in receiving such evidence over appropriate objection. (3) That it did not appear from legal evidence that the ordinary had ever issued any order calling the election; and this fact could not be shown aliunde, but must be'shown from the records. Evidence was admitted, over objection, tending to show the issuing of such an order, the ordinary whose duty it was to order an election having died prior to the bringing of this proceeding. Keld: 1. The entry on the petition does not necessarily show the date of the receipt of the petition by the ordinary. The burden of showing that the' election was held within less time than twenty days from the receipt of the petition by the ordinary was upon the plaintiffs. The admission by the court of aliunde proof on the part of the defendants as to this issue was not harmful to the plaintiffs, and is not cause for reversal.

No. 613. June 15, 1918.

Petition for injunction. Before Judge Walker. Warren superior court. September 12, 1917.

L. D. McGregor,-for plaintiffs. M. L. Felts and John P. Wilhoii, for defendants.

2. The burden is upon the plaintiffs, after such an election has been held, to show that the requisite one fourth of the qualified voters did not petition the ordinary. Wilson v. Dunn, 143 Ga. 361 (85 S. E. 198). The admission of aliunde proof of this fact by the defendants was not, in view of the above ruling, prejudicial to the plaintiffs in error, and therefore is not cause for reversal.

3. A valid order calling an election of the character indicated above is essential to the holding of a legal election for a tax levy. The plaintiffs, having shown that such order was neither of file in the ordinary’s office nor recorded therein, made a prima facie case; and the defendants having failed to show the contrary by legal evidence, the court erred in rendering a judgment refusing to restrain the assessment, levy, and collection of the tax. Cooley on Taxation (3d ed.), 569, 573, 578, 579.

4. The evidence of third persons, Who testified to the sayings of the deceased ordinary in regard to his intention to issue such an order, was hearsay and inadmissible; and the presumption that such public officer did his duty is not sufficient to establish a vital jurisdictional fact. Roberts v. Murphey, 144 Ga. 177 (86 S. E. 545); Cooley on Taxation (3d ed.), 447, 448; Throop on Public Officers, §§ 558, 560; Cleveland etc. R. Co. v. Randle, 183 Ill. 364 (7) (55 N. E. 728). Compare Dooly v. Fairmount, 146 Ga. 689 (2), 691 (92 S. E. 209).

Judgment reversed.

All the Justices concur, except Fish, O. J., absent, and Atlcinson and George, JJ., dissenting.