Goolsby v. Stephens , 155 Ga. 529 ( 1923 )

Russell, C. J.,

dissenting. The statement of facts recites the different stages and the incidents of this litigation, and a review of the record shows that the controlling question- in the case is whether the trial judge adopted the proper method of ascertaining whether such a legal election had been held by the qualified voters of the City of Forsyth, as required the declaration of the result of that election to be enforced by mandamus absolute. It seems that in the election which was held on the 34th day of April, 1933 (there being no dispute that the question of bonds or no bonds was duly advertised and submitted to the voters), 367 votes were cast in favor of the bonds and 100 votes were cast against the bonds. According to the list made at the instance of the city council, there were 550 voters within the City of Forsyth as shown by the registration list of Monroe County, and of this number 46 appeared for one reason or another to be disqualified; and the contention is vigorously pressed that'the 367 votes cast in favor of the issuance of the bonds is not such a two-thirds vote as is required by paragraph 1, section 7, article 7 of the constitution, as amended by the amendment submitted to the voters of this State in 1918 (Acts 1918, p. 99). I think that the trial judge properly overruled this contention, and correctly fixed the method by which the result of the election should be ascertained upon the provisions of section 443 of the Code of 1910. That section is as follows: “ In determining the question whether or not two thirds of the qualified voters in said county, municipality, or division voted in favor of the issuance of said bonds, the tally-sheets of the last general election held in said county, municipality, or division shall be taken as a correct enumeration of the qualified voters.”

The contention of the plaintiffs in error is, that, inasmuch as 267 is not two thirds of the qualified voters of Forsyth as shown by a copy of the registration lists of those voters of Monroe County who reside within the limits of Forsyth, two thirds of the qualified voters of the City of Forsyth, as required by law, had not voted in favor of the bond issue. Even if this argument be valid, if there was any provision of law requiring the registration of voters in municipal elections in the City of Forsyth it is not in point in the present case, for the reason that an examination of the charter of the City of Forsyth discloses that there is no provision for municipal registration in this city.

I dissent from the ruling of the majority, because one of the most substantial achievements resulting from civil liberty is the right of local self-government in the exercise of home rule by subordinate divisions existing within and subordinate to a commonwealth whether State or National. However, I would agree with the result reached by the majority were I convinced, as they are, that the charter of the City of Forsyth and the election held in pursuance thereof are null and void. I dissent because I do not think that it was the purpose of the amendment of 1918 to the constitution to affect vested rights of municipal corporations previously created by the General Assembly of the State, and certainly not to divest them of any rights hitherto enjoyed by any of these creatures of the State, or to place any new burden upon them, without express reference to that subject. As said by Mr. Justice Lumpkin, in Heard v. State, 113 Ga. 444 (39 S. E. 118), the existence of doubt as to the constitutionality of a legislative act (and such is the charter of Forsyth) is not merely strong argument in favor of its constitutionality, but “settles its validity.” The main purpose of the amendment of 1918 to the constitution, as it appears to me, was to do away with special registrations for the voters of counties, municipalities, and other political subdivisions of this State to pass upon the issuance of bonds; and as there was no special registration in this case, that question is not involved in the decision of the cause now before us. The amendment to article 7, section 7, paragraph 1, changed the constitution by doing away with the special registration which had been provided by law subsequently to the adoption of the original section and paragraph in 1877; for at the time of the adoption of the constitution there was no registration law in Georgia, and no reference whatever is made to registration as a prerequisite to voting in the constitution as originally adopted in 1877.

Under the ruling of the majority each municipality will now be compelled to provide for the registration of its voters; and I apprehend the decision of the majority may cause difficulties and confusion not necessary, to be now specifically pointed out. The fact that the amendment of 1918 refers to registered voters does not ex proprio vigore, it seems to me, do more than include within its provisions those municipalities which in 1918 had the authority to provide for municipal, registration. It cannot by mere inference be assumed that the General Assembly and the people, in adopting the amendment of 1918, intended to extend the operation of a law which was intended primarily to prevent municipalities from ordering special registrations to hold elections upon the subject' of bond issues, and to provide that a majority of the voters voting (provided such majority of voters was two thirds of those registered) could carry a bond issue through rather than two thirds as determined by the lists and tally-sheets of the last preceding election, as provided by § 443 of the Code, so as to preclude the issuance of bonds on the part of such municipalities as had no authority to’register voters. Nor does it appear to me that there must be inferred a purpose to repeal the plain provisions of section 443 of the Code, which already provided for all municipalities whose charters contained no provision authorizing or requiring the registration of municipal voters. It seems plain to me that this case ought to be decided in accordance with the provisions of § 443, and that there is no constitutional difficulty in deciding it in accordance with the rule therein stated.

I do not agree with the majority, because I maintain that, so far- as municipal elections in the City of Forsyth are concerned, they are unaffected by the constitutional amendment to which we have referred; whatever may be the rule as to municipalities which aré empowered to make provision for the registration of voters in elections held in the municipality. The amendment to paragraph one, section seven, article seven of the constitution, adopted in 1918 (Acts 1918, p. 100), provides that no municipality “shall incur any new debt without the assent of two thirds of the qualified voters thereof voting at an election for that purpose to be held as prescribed by law, provided said two thirds so voting shall be a majority of the registered voters, and provided further that ¿11 laws, charter provisions, and. ordinances heretofore passed or enacted, providing special registration of the voters of counties, municipal corporations, and other political divisions of this State to pass upon the issuance of bonds by such counties, municipal corporations, and other political divisions are hereby declared to be null and void; and the General Assembly shall hereafter have no power to pass or enact any laws providing for such special registration.” Since the City of Forsyth has no municipal or local registration law nor any charter provision which requires or au-' thorizes the voters of that city to be registered, it is plain that the method of ascertaining whether two thirds of the qualified voters which the law requires have voted in favor of any bond issue affecting that municipality must be determined by section 443 of the Civil Code. Gavin v. Atlanta, 86 Ga. 132 (12 S. E. 262); Farmer v. Thomson, 133 Ga. 101 (65 S. E. 180). As said by Judge Little in Floyd County v. State, 112 Ga. 794-802 (38 S. E. 37): “If no registration law is applicable and no authority to establish one has been conferred on the municipality, and the election for bonds is held, then the question as to whether two thirds of the qualified voters voted in favor of the issuance of the bonds is to be decided by reference to the tally-sheets of the last general election.”

The facts of this case distinguish it from Mays v. City of Jackson, 147 Ga. 556 (94 S. E. 1006), in that in the present case there is no provision of law for the registration of voters in the City of Forsyth, whereas under the charter of the City of Jackson authority to provide for the registration of voters was vested in the mayor and aldermen; and this court followed the- ruling in Floyd County v. State, supra, in which it was held that " If the municipality has been invested by the legislature with authority to put a system of registration in force, and an election is held without having provided a system of registration, no means of determining whether two thirds of the qualified voters did in fact cast their votes for bonds exists.” In the same case from which the rule above quoted was taken it was also held, as hereinabove quoted, that where no authority to establish a registration law has been conferred upon the municipality, and an election for bonds is held, then the question as to whether two thirds of the qualified voters voted in favor of issuance of the bonds is to be decided by reference to the tally-sheets of the last general election. The same distinction as,exists between this case and the Mays case has been pointed out by this court in numerous decisions. It is adverted to in the FLays case.

It is clear, then, that the trial judge adopted the correct rule for ascertaining whether or not two thirds of the qualified voters of Forsyth voted in favor of the proposed bond issue, and, since it appeared that only 49 votes were cast in the last general election preceeding the voting upon the issue of bonds, that 261 (even after deducting 46 votes that were challenged) were more than two thirds of the qualified voters of the city; and it is equally plain, since only 100 votes were cast against the issue of bonds, that more than two thirds of those voting in the election of April 24 voted for the proposed issue, even after deducting the 46 votes alleged to have been illegal.

Complaint is made that the judge should have submitted the' case to a jury, inasmuch as there were issues of fact involved. The court refused to pass the case until the next term of court for trial by jury, holding that the issues of fact suggested were immaterial, and that the court could decide the case upon the pleadings alone. The holding of the court as to this matter was not error; for, under the issue as to which the parties agreed, there was only one real issue in the case, and this single issue presented only the question of law which we have considered. In other words, under the material facts as to which there was any dispute, was the number of qualified voters to be determined by a so-called list of the registered voters of Forsyth, which was made without authority of law, to be used in determining who were the voters qualified to vote in the bond election, or was the enumeration of the qualified voters of Forsyth to be determined by the tally-sheets of the preceding election? As shown above, the law fixes the latter rule as the method of determining who are the qualified voters in cities and towns in which no provision has been made by law for registration, and consequently no matter of fact bearing upon this issue of law was material in the investigation.

I am authorized by Mr. Presiding Justice Beck to say that hé concurs in the views expressed in this dissent, and in the opinion that the judgment of the lower court should be affirmed.