Bachlott v. Buie , 158 Ga. 705 ( 1924 )

Hines, J.

An election was held in Camden County upon the question of the removal of the county-site from St. Marys. On the face of the returns the election was in favor of the removal of the county site to Woodbine. The election was contested. On the hearing of this contest the Secretary of State found that two thirds of the qualified voters of the county had not voted in favor of the removal of the county site from St. Marys to Woodbine; and he certified by written certificate that two thirds of the qualified voters of the county had not voted in favor of the removal. Notwithstanding said finding and certificate, the legislature passed the act of August 11, 1923, removing and changing the county site of Camden County from St. Marys to Woodbine. Ga. Laws 1923, p. 218. This act recites that “An election has been duly and legally held in Camden County for the removal of the county-site of said county, and at said election by a majority of more than two thirds of the qualified voters of said county voting at said election it was voted that the county site of said county should be removed from St. Marys to Woodbine in said county.” In pursuance of said act the county commissioners of said county were preparing to remove said county-site, when certain citizens and taxpayers thereof filed their petition to enjoin them from expending the funds of said county in so doing, on the ground that said act of the legislature was unconstitutional and void, because the legislature was concluded by the judgment of the Secretary of State, rendered in said contest of said election, finding that two thirds of the qualified voters of the county had not voted in favor of said removal; and could not go behind said judgment, make an independent investigation of its own, and reach a finding contrary to that of the Secretary of State.

The controlling question in this case is this: Is an act of the General Assembly, which removes a county-site, unconstitutional and void because it was passed contrary to the finding of the Secretary of State, in a contest of the popular election for such removal, that two thirds of the qualified voters at such election had not voted in favor of the removal? This question has been decided in the negative by this court. Cutcher v. Crawford, 105 Ga. 180 (31 S. E. 139); Lee v. Tucker, 130 Ga. 43 (60 S. E. 164); Vornberg v. Dunn, 143 Ga. 111 (84 S. E. 370). What is the gist of the decision in Cutcher v. Crawford ? The legislature passed an act to remove the county-site of Fannin County from Morgan-ton to Blue Ridge. The act recited, that an election had been held for changing the county-site, and that two thirds of the legal voters at said election had voted in favor of the removal. A petition was filed to enjoin the removal, on the ground that “less than two-thirds of the votes cast at said election were in favor of removal of said county-site, as the consolidated returns of said election showed.” At the hearing of the application for injunction a certified copy, from the office of the Secretary of State, of the consolidated returns of the election held upon the question of the removal was offered for the purpose of showing that two thirds of the qualified voters at such election had not voted for the removal of the county-site. This evidence was rejected by the trial judge. This court affirmed that ruling. Why? Because “the transcript offered in evidence and rejected was not relevant or admissible for the purpose of contesting the constitutionality of the law.” In the opinion in that ease it was said: “If such evidence were before [the legislature], we are bound to conclude that the same was not satisfactory, and that in some other way, or by some other means, it became convinced that two thirds of the legal voters voting at the election cast their ballots in favor of the removal.” This clearly means that the General Assembly was not bound by the result reached by the Secretary of State. It is true that the act of removal in that case was passed prior to the act of 1897, which provides for the contest of elections held for the purpose of removing county-sites. But for this fact, the decision in that case is controlling in this case. Does that fact alter the situation? This question came before this court again in Lee v. Tucker, supra, where the ruling in Cutcher v. Crawford was followed; and this court said: “Nor is the law changed in this regard by the act approved November 9, 1897 (Acts 1897, p. 87), providing for a contest of such elections before the Secretary of State.” In Lee v. Tucker, this court had under consideration the act of August 19, 1907 (Acts 1907, p. 307), removing the county-site of Irwin County from Irwinville to Ocilla. There was a contest of the election for the removal of the county-site; and it .was pending and undecided. Notwithstanding this fact, that “act was introduced, passed by the Senate, and read in the House the first and second time, before the Secretary of State had made a finding upon the contest filed before him of the election” held on the question of the removal of the county-site. It was contended, in that case, that the legislature was without power to pass a removal act until the Secretary of State had decided the contest of the election. This court held the contrary. In effect it held that the legislature could act independently of the Secretary of State, and contrary to any finding he might make in the contest proceeding. It is true that the Secretary of State, in deciding this contest, finally found, as the legislature had determined, that the necessary two thirds of the votes were cast in favor of removal; and learned counsel for the plaintiffs contend that this fact differentiates that case from the one at bar. But this court rested its decision, not upon that fact, but upon this principle: “If, in Georgia, the courts have any such power to pass upon such a question of fact, it is at least clear from the rulings heretofore cited that they can consider no evidence outside of the journals of the two houses of the General Assembly; and unless they show affirmatively that the legislature acted in the face of,, or contrary to, a constitutional prohibition, it will be conclusively presumed that it did not so act.”

But this court has gone still further. It.has ruled that even the journals of the two houses of the legislature are not admissible for such purpose. “A duly enrolled act, properly authenticated by the regular presiding officers of both houses of the General Assembly, approved by the Governor, and deposited with the Secretary of State as an existing law, will be conclusively presumed to have been enacted in accordance with constitutional requirements.” Dorsey v. Wright, 150 Ga. 321 (103 S. E. 591). This being so, an act removing a county site will be conclusively presumed to have been passed in conformity to constitutional requirements. It is said that this conclusion will leave the people of a county at the mercy or caprice of the legislature. They are not without the protection which comes from the fact that the members of the General Assembly are sworn to uphold and defend the constitution of this State. We cannot presume that they will violate the provision of that instrument which requires that two thirds of the legal voters of a county, at an election held for that purpose, shall east their ballots in favor of removal, before the General Assembly can pass an act of removal.

The above ruling disposes of the merits of this case adversely to the plaintiffs in error; and it becomes unnecessary to consider any other questions raised in the record or discussed by counsel in their briefs.

Judgment affirmed.

All the Justices concur, except Atkinson, J., disqualified, and Russell, G. J., dissenting.