Davis v. Warde

118 S.E. 378, 155 Ga. 748, 1923 Ga. LEXIS 163

Opinion

Hill, J.

(After stating the foregoing facts.)

The defendants in the original proceedings having been served or acknowledged service and having filed answers to the petition, except A. B. McLean, all parties announced ready for trial on the issues raised by the pleadings on the hearing before the judge for injunction. At this stage of the proceedings there was presented to the trial judge an application by H. S. Harper and others, alleging that they are all taxpayers and citizens of the City of Albany and vitally interested jn the matters in controversy in -this case. It was averred that they adopted as their own all the answer and pleadings filed by the deféndants, G. G. Warde, C. W. Bawson, and "W. M. Legg; and then they answered specifically along substantially the same line as the other defendants. They prayed for leave to intervene and be macíe parties defendant. The plaintiffs objected to the granting of the application to intervene and to the allowance of the intervention, and especially each part of the application, following the second paragraph, upon the grounds that the intervention sets out no facts relevant to any relief sought by the plaintiffs; that the intervention sets out no facts relevant to any cause of action involved in the plaintiffs’ petition, or any defense involved in the defendants’ answer, and that the intervention shows no cause or right to intervene. Conceding, but not deciding, that all of the petition for intervention after the second paragraph sets out no facts relevant to any relief sought by the defendants,'" as contended by the plaintiffs, we are of the opinion that when the intervenors adopted as their own all the answer and the pleadings filed by the defendants, the substance of which is set out in the foregoing statement of facts, the answer of the defendants, which was adopted, did set out facts relevant to the relief sought by them; and therefore the trial court did not' err in allowing the. intervention filed by the defendant intervenors. But it is argued by the plaintiffs that there is no statute in Georgia allowing such an intervention (as there is in cases of validation of bonds and the like); and that, in the absence of a statute allowing an intervention, intervenors are allowed to be made parties over the objection of the plaintiffs in two cases only: first, in a proceeding in rem, or quasi in rem, where a fund or property against which the intervenor has some right is in the custody of the court; or, second, in a case where the beneficiary of a trust is allowed to intervene because his trustee is unfaithful to the trust, or in representing the property; and in support of this proposition the plaintiffs in error cite three cases from jurisdictions other than our own, viz.: Curtis v. Curtis (Ala.), 60 So. 167; ex parte Printup, 6 So. 418; Ehrenstrom v. Phillips (Del.), 77 Atl. 80. It is argued that in all other cases than the "ones pointed out above the plaintiff is dominus litis, and others who wish to assert their own alleged rights must file their own bill and can not intervene as defendants in a case like the present. A number of cases are cited, beginning with Shields v. Barrow, 17 How. 130 (15 L. ed. 158). It is further argued that the plaintiff must consent to an outsider coming into the suit, except in the two cases mentioned, citing Drake v. Goodridge, 7 Fed. Cas. 4062, 6 Blatch. 151; Steele v. Taylor, 1 Minn. 274; Sheppard v. N. J. Cons. etc. Co., 73 N. J. Eq. 578 (74 Atl. 140); Stretch v. Stretch, 2 Tenn. Ch. 140. And see Whiting v. Hanover National Bank, 23 L. R. A. 531 (1).

It is insisted that our own courts have recognized the rule that a person has no right to intervene with the defendant in equity against the complainant; and the case of Armour Car Lines v. Summerour, 5 Ga. App. 619 (63 S. E. 667), is cited in support of the proposition. In the Armour case the Court of Appeals said: “ In a suit in rem all persons who have interest in the res should be allowed to intervene and be heard in behalf of their interests in it. Every such person has a legal interest in the controversy, because of his interest in the res. In a suit in personam, however, a petition to intervene, presented by one who is not a party thereto and who has no interest, in a legal sense, in the subject-matter of the suit, should be refused, especially where the applicant, of his own motion, seeks to be made a party defendant, and the plain tiff in the ease objects thereto. The right of a defendant to vouch into court another who is liable over to him, which is conferred by the Civil Code, § 5234, does not include the right of volunteering to become a defendant, when no notice has been given by the defendant, and when the plaintiff has not asked such an one .to be made a party defendant.” And the case of Clark v. Wheatley, 113 Ga. 1074 (39 S. E. 437), is also cited, where this court held that “ It is not the right of a stranger in a pending cause to intervene therein, unless it is necessary to his protection that he be allowed to become a party to the litigation and thus afford him an opportunity to resist the rendition of a judgment which would operate to his prejudice.” The case of Wilson v. Green, 141 Ga. 790, 791 (82 S. E. 241), is also cited, where this court held: “ The, court erred in admitting in evidence the two deeds above referred to, which had not been recorded nor the execution thereof proved. 2. While the rule as to the admissibility of evidence on interlocutory hearings has been held not to be in all particulars as strict as on jury trials, and while parol evidence is admissible to apply certain written statements to their subject-matter, the statements in the affidavits above referred to were not admissible in evidence under either of the rules just stated. 3. The errors pointed out were material and went to the very heart of the contention between the parties; and this court can not with any certainty know what would have been the decision of the judge had such illegal evidence been excluded. It is not intended to indicate that a temporary injunction should be granted; but the judgment refusing such an injunction is reversed, with direction that another hearing may be had in view of the rulings here made.” The argument with reference to the last-cited case is that the allowance of the intervention is analogous to the erroneous allowance of an amendment, or the erroneous overruling of a demurrer, and that it necessarily affected the whole of the remainder of the. trial and should result in the reversal of the case, or sending it back for a trial with the intervention stricken. But we do not assent to the view of learned counsel for the plaintiffs. We think that the intervention was properly allowed, and that the effect of its allowance could not have had the consequences as pointed out by them. With reference to the first two Georgia cases cited, regardless of what rule has been adopted by outside jurisdictions, we are of the opinion that the Georgia cases lay down the correct rule, and that they are not applicable to the case under consideration. Those cases state the rule to be that in a suit in personam a petition to intervene presented by one who is not a party thereto and who has no interest in the subject-matter of the suit should be refused. But in the instant case the defendants who have intervened have identically the same interest as the original defendants had. They are citizens and taxpayers of the City of Albany, and they have the same interest in the form of municipal government under which they shall live as- the original defendants had; and that being so, we can see no good reason why they should not come in by way of intervention and join with the other defendants in making whatever defense the original defendants may have to the injunction proceedings brought against them, which is common to both. In such case it can not be said that the defendant intervenors have no right to intervene, and that they have no interest in the subject-matter of the suit.

The act of August 18, 1917 (Acts 1917, p. 454), created and established a new charter for the City of Albany, providing for a municipal government of the city under what is known as the mayor and council plan. The act of 1922 (Acts 1922, p. 457) was an act which undertook to amend the charter of the City of Albany and the acts amendatory thereof, and to provide another form of municipal government known as the commission city-manager form of government. The act of 1922, supra, has a caption covering almost two pages in the printed acts of the Georgia Laws for 1922. The caption in part is as follows: “ An act to amend the present charter of the City of Albany and acts amendatory thereof; to provide for the election of five commissioners from each of the five political wards of the City of Albany, in lieu of the present mayor and council; to provide for certain councilmen to become commissioners; to provide the manner of election of commissioners, to fix their qualifications, compensation, term of office, powers and duties; to provide for the choosing of a city manager by the said commissioners, and to fix his qualifications, compensation, powers, duties, and term of office; . . to provide for a referendum at the next election of city councilmen for the ratification of this act; to provide for qualifications and registration of voters for the next election of councilmen, and for other purposes.” It would be unprofitable to set out the caption of this act in full. The act of 1922, supra, is attacked by the plaintiffs as being illegal and unconstitutional as in violation of art. 3, sec. 7, par. 8, of the constitution of Georgia (Civil Code of 1910, § 6437), which provides that “No law or ordinance shall pass which refers to more than one subject-matter or contains matter different from what is expressed in the title thereof.” We have set out at very considerable length in the statement of facts the various contentions of the plaintiffs as to why the body of the act contains matter different from what is expressed in the title thereof; and it will be unnecessary to repeat them here. We may, however, repeat succinctly some of these contentions for the purpose of consideration of the question involved. One contention made by learned counsel is that the caption provides for a referendum at the next city election for the ratification of the act of 1922, and that in the body of the act it is provided that it shall become the law and the new charter for the City of Albany “ unless a majority of the registered qualified voters appearing on the official registration- list for said election shall vote ‘ against commission city manager form of government/ ” Another contention' is that the caption shows an intention to provide for the qualifications and registration of voters in the election, while the body of the act provides that not only those who might register under the act should be eligible to vote, but also all who had registered in the previous election and not before, and that there is nothing in the title to show that those who had registered and not before would be made eligible to vote in the said referendum, etc., as set out in the statement of facts. The question to he determined, therefore, is whether there is a difference between the subject-matter contained in the body of the act and the title of the act.

The purpose of the constitutional provision quoted above is to put the public on notice as to what legislation is sought to be enacted, in order that the public, if interested in the subject-matter of the legislation could be heard in proper wa}rs before the proposed legislation is enacted into law. Obviously, a caption can not contain as much of the subject-matter as is contained in the body of the act; else there would be no need of the caption at all, which is intended merely to put the public on notice and inquiry, as already indicated, as to the class or kind of legislation proposed to be enacted. We are of the 'opinion that the fact that the caption of the act provides for a referendum covers any form of referendum, and puts the public on notice that the act deals with a referendum, and if the public is interested enough it can ascertain what the body of the act contains with reference to such referendum. This court has repeatedly held that the slightest mention in the caption of an act is sufficient to cover that subject, whatever it may be, in the body of the act; and the fact that the body of the act provides for an unusual method of referendum would not be sufficient for us to hold that the body of the act was not covered by the title thereof. The subject to be considered is a referendum, regardless of the kind of referendum provided; and where the caption of the act calls attention to the fact of a referendum, this is sufficient to put the public on notice that some form of referendum will be adopted. What we hold is that a reference in the caption to the fact of a referendum is sufficient to put the public on notice that some kind of a referendum would be considered and probably enacted into law.

It is also insisted that under the provisions of the act, if no referendum election was had by a certain date, the act should become operative and of force, and that there is nothing in the caption of the act to put the plaintiffs and the public on notice of that fact. This court has held that it will not hold an act of the legislature unconstitutional on a question raised by one who has not been injured by reason of that fact, and it is not insisted here that the act did go into effect without a referendum vote. The legislature, of course, would have the right to pass a bill without having it submitted to a vote of the people; but that question is not involved in the present case, because there was a referendum vote.

It is insisted that the title shows an intention .to provide for the qualification and registration of voters, while the body of the act provides not only who might register under the act and should be eligible to vote, but also all those who had registered in a previous election, and not before, there being nothing in the title to show that those who had registered, and not before, would be made eligible to vote in the referendum. We are likewise of the opinion, on this ground of the assignment of error, that the caption of the act was sufficiently broad to call attention to the subject-matter of providing for qualification and registration of voters for the next election of eouneilmen, and for. other purposes, and this was sufficient to put upon inquiry any citizen who was interested in that subject-matter, and we can not say that the matter embraced in the body of the act which is attacked as being illegally therein is foreign to the general purpose and scope of the legislation indicated by the language of the caption to the act. In their brief counsel for plaintiffs say that it may be conceded that if the caption to the act was merely to amend the charter of the City of Albany, and for other purposes, and had stopped there, there might have been inserted in the body of the act a provision for- almost any sort of referendum, or a provision that the act should become operative at the whim of the mayor and council or of the grand jury, or others, but such a title would have put the public on notice that anything germane to the charter of the city might-be included in the body of the act, and that it would have been the duty of the public to read all of the act, if necessary, to find out what provisions it contained. If a caption to an act which merely recites the fact of the purpose to amend a city charter is sufficient in order to include anything that is germane to such purpose, we are unable to see why a caption entitled “ an act to amend the present charter of the City of Albany,” etc, and containing in addition language as broad'and comprehensive as the present one does, is not sufficient to put the public on notice of everything that is' contained in the act which is objected to here as being obnoxious to the provision of the constitution set out in the beginning of this division of the opinion. ^

In Welborne v. State, 114 Ga. 793 (40 S. E. 857), this court held that “The title to an act need not contain a synopsis of all of its provisions. Any legislation which is germane to the general purpose of the act as indicated in the title can be properly embraced in the act, and, no matter what may be its details, the legislation embraced therein will not render the act subject to the objection- that it contains matter variant from the title, so long as such matter is legitimately within the general scope of the purpose of the act as indicated in the title.” And see, to the same effect, Brand v. Lawrenceville, 104 Ga. 486 (30 S. E. 954); Hope v. Gainesville, 72 Ga. 246; Carroll v. Wright, 131 Ga. 728 (63 S. E. 260); Mayor &c. of Savannah v. State, 4 Ga. 26; Smith v. Bohler, 72 Ga. 546; Brown v. State, 73 Ga. 38; Howell v. State, 71 Ga. 224 (51 Am. R. 259); City of Atlanta v. Gale City Street R. Co., 80 Ga. 276 (4 S. E. 269); Alberson v. Hamilton, 82 Ga. 30 (8 S. E. 869); Dallis v. Griffin, 117 Ga. 408 (43 S. E. 758); Town of Poulan v. Atlantic Coast Line R. Co., 123 Ga; 605 (51 S. E. 657); Newman v. State, 101 Ga. 524 (28 S. E. 1005); Cunningham v. Griffin, 107 Ga. 690 (33 S. E. 664); Mayor v. Hughes, 110 Ga. 795 (36 S. E. 247); Richardson v. Macon, 132 Ga. 122 (63 S. E. 790); Butner v. Boifeuillet, 100 Ga. 743 (28 S. E. 464).

The plaintiffs cite the following cases in support of their contention that the act of 1922 is unconstitutional and void, because the body of the act contains matter different from that contained in the caption thereof. The first case cited is that of Blair v. State, 90 Ga. 326, 329, 330 (17 S. E. 96, 35 Am. St. R. 206). The last sentence of the quotation from that case is as follows: “ The constitution intended to protect people against covert or suprise legislation;” and that we take it is the true rule, but we fail to see in this case how there could be, under the caption of the act in this ease, a failure to put the public on notice of the general scope of the legislation proposed. The following cases are also cited: National Bank of Augusta v. Southern Co., 55 Ga. 36, 38, near bottom; Tolbert v. Long, 134 Ga. 298 (1), 300 (67 S. E. 828); Bass v. Lawrence, 124 Ga. 75 (2) (52 S. E. 296); Board of Education v. Barlow, 49 Ga. 232 (4), 241; Conley v. State, 85 Ga. 348 (11) (11 S. E. 659); Crabb v. State, 88 Ga. 584 (15 S. E. 455); N. E. R. Co. v. Morris, 59 Ga. 364 (1, 2), 368; City Council of Augusta v. P. R. & A. Ry. Co., 74 Ga. 658 (2), 661; Johnson v. Jones, 87 Ga. 85 (13 S. E. 261); McDuffie v. State, 87 Ga. 687 (13 S. E. 596); Harris v. State, 101 Ga. 887; Dempsey v. State, 94 Ga. 766, 768 (22 S. E. 57); Ayeridge v. Social Circle, 60 Ga. 404; Arrington v. State, 148 Ga. 115 (95 S. E. 980); Sister Felicitas v. Hartridge, 148 Ga. 832 (1, 2), 838 (98 S. E. 538); Brown v. State, 79 Ga. 324 (4 S. E. 861).

But these cases are distinguishable from the case at bar; and we feel constrained to hold that the 34th section of the act of 1922, supra, and other portions of it attacked, are not in violation of art. 3, sec. 7, par. 8, of the constitution of Georgia (Civil Code of 1910, § 6437), for any reason assigned.

The act of 1922 (Acts 1922, pp. 457, 473, sec. 34) provides that before the provisions of the act shall go into effect the same shall be ratified by the people at the next election for the choice, of councilmen under the present, charter, the wards being given an opportunity to vote on the issue, and the election to be held under the same rules and regulations and requirements of voters and registration as now exist for the holding of general city elections and for the certification and returns of the same. It was also provided that “ those who were registered and qualified voters in the city election of 1921 for the choice of mayor and council shall be deemed registered and qualified voters for said election in 1922, unless disqualified by residence requirements or failure to pay required taxes under the law, and shall not be required to register again in order to vote in said election. Those who did not register and qualify for the said election in 1921 shall be permitted to register and qualify for said election in 1922 after the manner and method now provided in the present city charter of Albany for the registration of voters according to wards for the choice of councilmen,” etc. It was also provided that at the election the “ ballots furnished voters for this said election shall have printed thereon c for commission city-manager form of government/ and the voter shall erase or draw a line through the wording which does not express his or her choice, unless a majority of the registered qualified voters appearing on the official registration list for said election shall vote ‘ against commission city-manager form of government/ then and in that event this act shall be deemed ratified and in full force and effect according to its terms on the second Monday in January, 1923, as .hereafter provided. In the said event, the said mayor and council should refuse or fail to call or hold said election on the date named for the ratification of this act, then said act shall be deemed ratified and go into effect according to its terms without any election or referendum, on the date herein provided.” An election was held on December 4, 1922, and the present case grows out of the result of that election. The record shows that 889 votes were cast in favor of the “ commission city-manager form of government,” and that 1173 votes were cast against the “ commission city-manager form of government.” The registration list under which the election was held was prepared and furnished by the mayor and council of the City of Albany. An order was also drawn and signed by the clerk of council in accordance with the figures given above, and declaring that the “ commission city-manager form of government 55 had been adopted at said election for the City of Albany. Subsequently the mayor and council employed two men to go into the registration list of 1921 and to purge it of names which it was contended were not there in accordance with law. In this new registration list, provided by this committee subsequently to the election, the names of 257 women voters were excluded, and certain other names, one because the man had been convicted of crime; and after purging the registration list the mayor and council adopted another ordinance setting forth the fact that, with these names eliminated from the registration list of 1921, a majority of the legal voters at the election of December 4, 1922, were cast against the “ commission city-manager form of government/5 and they therefore declared that the commission form of government had not been adopted by the voters of the City of Albany on December 4, 1922 according to the newly purged registration list of 1921. The question, therefore, arises whether the mayor and city council of Albany, after having declared by written resolution the result of the election, could subsequently rescind that order and purge the registration list of 1921 and pass the second order declaring that the commission form of government had not been adopted. We are of the opinion that when the original order declaring the result of the election was passed and signed by the clerk of the mayor and council with the seal of office attached, although that order was not signed by the mayor, prima facie such order was authorized by the mayor and city council, and it exhausted the power and authority of the mayor and city council in the matter. The charter of the City of Albany (Acts 1917, p. 464, sec. 6, par. 14) provides that the major and council are required to declare the result of all elections at the first meeting held after the election. The record shows that a meeting of the mayor and council was held after the election on December 12, 1922, and that the mayor and council, as evidenced by the order signed by the clerk, declared the result of the election in compliance with the provisions of the charter above specified, and based upon the registration list prepared and furnished by the mayor and council. The clerk signed this order with the official seal of the City of Albany attached, certifying that it was a true and correct copy of the original resolution of file in his office. When the order was so signed it imported verity upon its face. It was also a final order which could not be arbitrarily rescinded and set aside. The resolution adopted by the mayor and city council, which was signed by the clerk, and which declared the election carried in favor of the “ commission city-manager form of government,” also provided that the resolution and the certificates of the managers of the election should be spread upon the minutes of the mayor and council. The record shows that the resolution was never spread upon the minutes of the mayor and council, but there is nothing in the record to show that the resolution was not passed by the mayor and council in the form in which it is set forth in the record. And the second resolution itself recites that, prior to the confirmation of the minutes of the meeting held December 12, 1922, the second resolution was considered and adopted on January 2, 1923, and it is by this latter resolution that the mayor and council sought to rescind its action as a canvassing board declaring the result of the election on December 12, 1922, in favor of the “ commission city-manager form of government.” It is insisted on the part of the plaintiffs that the registration list of 1921, under which the election was held, was not conclusive as to the qualifications of the voters whose names appeared thereon; and the question arises whether the mayor and council, in acting as canvassers of the returns of the election and declaring the result, can go behind the registration list to investigate whether the persons whose names appeared thereon, and who had not voted, were really qualified voters to be counted as determining whether a majority of the qualified voters of Albany had voted against the ratification of the acts of 1922, supra. On the argument here it is conceded that the registration list of 1921 was prima facie correct as to the qualifications of the voters whose names appeared thereon; but it is contended that it was not conclusive, for the reason that the acts themselves show that it was not the legislative intent that the list would be conclusive on the courts, and that the courts in cases like the present must decide for themselves, under the evidence adduced, whether all the persons whose names appeared on the registration list were really qualified voters who should be counted in determining whether a •majority of the qualified voters had voted for or against the adoption of the questions submitted. But that is a different question from having a board of canvassers, who have declared the result of the election, subsequently to rescind their order and have an entirely new list of registered voters made up, eliminating 585 persons of the 2795 whose names appeared on the “ official registration list ” as prepared and furnished by the mayor and council themselves prior to the election. We are of the opinion that the mayor and council, acting as a canvassing board, exhausted all of the powers they had as such canvassing board when they passed the order on December 12, 1922; and although, as stated above, that order was signed only by the clerk, yet the mayor and council recognized it as a valid order when they subsequently sought to and did formally rescind it by another order. While it is true that the charter of Albany contains a provision requiring that all ordinances and resolutions shall be signed by the mayor or the officer presiding at the time of their passage, and countersigned by the clerk (Acts 1917, p. 487, sec. 21, par. 2), these provisions aré directory only. Moore v. Thomasville, 17 Ga. App. 285 (86 S. E. 641), and authorities cited; Jones v. Carrollton, 17 Ga. App. 476 (87 S. E. 605). In the act of 1917, pp. 454, 464, it is provided that “ the mayor and council shall, at their first meeting after the election, receive said returns from the clerk of council and declare the result of the election in accordance with the certificate of the managers, those-receiving the highest number of votes being declared elected, or the question voted upon being declared carried or not carried, as the case may be, which certificate, together with the resolution of the council declaring the results of the election, shall be entered upon the minutes of the council.” We think that the duties of the mayor and council here defined are those of a canvassing board, and that the board can not go outside of the official returns and receive evidence as to the qualifications of voters, or act in any way in connection therewith except to declare the result of the election on any evidence except the official returns.

In 20 C. J. 204, § 263, it is said that “When a board of canvassers has fully performed its duty, proclaimed the result of the count according to law, and adjourned sin.e die, it is functus officio; the persons who compose it have no power voluntarily to reassemble and recanvass the returns. Neither have their successors in office power to reeanvass returns already canvassed by the old board. Where a canvass has been concluded under the statutory provisions for its conduct existing at the time, the legislature has no power to create a new tribunal with power to re-canvass the election and to award possession of the office to another claimant. However, the fact that a board of canvassers canvasses part of the returns, declares the result, and adjourns sine die, does not deprive it of authority or relieve it of the duty to reassemble and canvass all the returns. After county canvassers have forwarded an abstract of votes for certain offices to the secretary of State to be canvassed by the State canvassing board, a change made subsequently by them in such abstract is a nullity, but there is nothing improper in their action in subsequently completing their duties by forwarding the abstracts of votes for other offices.” And in section 265 of the same volume it is said that “ After a board of canvassers has completed the count and awarded a certificate of election, another certificate of election awarded -to an opposing candidate, based upon a voluntary recanvass by the board, is a nullity.” And see sections 200, 254, and 258. The latter section reads in part as follows: “ It is settled beyond controversy that canvassers can not go behind the returns. The returns provided for by law are the sole and exclusive evidence from which a canvassing board, or official, can ascertain and declare the result. The canvassers are not authorized to examine or consider papers or documents which are transmitted to them with the returns, or as returns, but which under the statutes do not constitute part of the returns. Neither are they at liberty to receive and consider extrinsic evidence, unless the official returns are destroyed before they are canvassed, in which case secondary evidence of their contents may be received.”

In State ex rel. King v. Trimbell, 12 Wash. 440 (41 Pac. 183), it was held: “The canvassing board can not go behind the returns of the election officers to determine the results of an election.” And see Stearns v. State ex rel. Biggers, 23 Okla. 462 (100 Pac. 909). And in Kunkle v. Coleman, 174 Ind. 315 (92 N. E. 61), it was held that “ The duties of canvassers are purely ministerial; they perform the mathematical act of tabulating the votes of the different precincts as the returns come to them.” See People ex rel. Del Valle v. Butler, 20 Cal. App. 379 (129 Pac. 600); State ex rel. Fletcher v. Osburn, 24 Nev. 187 (51 Pac. 837), where it was held that' “ The determination as to the result of an election by a canvass of the returns by the city council is not a judicial act, but is purely a matter of calculation, and hence can-hot be brought up for review by certiorari;” Payne v. Hodgson, 34 Utah, 269 (97 Pac. 132); Lewis & Putner’s Hand Book of Election Laws, 148; Jay v. O’Donnell, 178 Ind. 282 (98 N. E. 349, Ann. Cas. 1915C, 325); Potter v. Campbell, 155 Ky. 784 (160 S. W. 763); Attorney-General v. Board of Canvassers, 64 Mich. 607 (31 N. W. 539); Mechem on Pub. Officers, §§ 207-8-9; McCoy v. State ex rel. Allee, 2 Marv. (Del.) 543 (36 Atl. 81); Franklin County v. State ex rel. Patton, 24 Fla. 55 (3 So. 471, 12 Am. St. R. 183); Lansdon v. State Board of Canvassers, 18 Idaho, 596 (111 Pac. 133); State ex rel. Norton v. Van Camp, 36 Neb. 9, 91 (54 N. W. 113); Gatling v. Boone, 98 N. C. 573 (3 S. E. 392); Chamberlain v. Hedger, 12 S. D. 135 (80 N. W. 178); People ex rel. Sherwood v. State Board, 129 N. Y. 360 (29 N. E. 345, 14 L. R. A. 646); Brown v. Jeffries, 42 Kan. 605 (22 Pac. 578); People ex rel. Derby v. State Board of Canvassers, 129 N. Y. 461 (29 N. E. 358); Wells v. Robertson, 277 Ill. 534 (115 N. E. 654; 656); Hart v. State Board of Canvassers, 161 N. Y. 507 (55 N. E. 1058); State ex rel. Pigott v. Board, 12 Mont. 537 (31 Pac. 536); Pratley v. State ex rel. Campbell, 17 Wyo. 371 (99 Pac. 1116); State ex rel. Gregg v. Tanzey, 49 Ohio St. 656 (32 N. E. 750). In Tanner v. Deen, 108 Ga. 95 (33 S. E. 832), this court said that “ This action on the part of these superintendents amounted to nothing, first, because it was done without any notice to the superintendents of the other party and without their knowledge; second, because it was in violation of the restraining order issued by the judge; and third, because it was impossible for them to have consolidated the returns of the county without having such returns before them.”

In Mechem on Public Officers, § 211, it is said that “ Board can act but once. But having once met and fully completed their duty, their powers are exhausted, and they can not again meet and re-canvass the votes or reverse their prior decision and announce a different result.” And this rule seems to be the logical result of our elective system. If canvassing boards can meet and change the results which they have once declared, they can also meet and change the results any number of times. Serious .and injurious results might follow if such powers' were held to exist in canvassing boards. When they have met and canvassed the returns of an election and declared the result, they have exhausted their powers, and have no authority to meet and recanvass the result of an election and to declare a different result. In the instant case it appears that the second action of the mayor and council was founded, not on the returns of the managers of the election, or on the certificate of election, but upon the extrinsic and ex parte evidence of outsiders; and we are of the opinion that the resolution adopted by the mayor and council on December 12, 1922, declaring the result of the election, was prima facie correct and could not be changed by the subsequent action of the canvassing board.

What has been said above, with reference to the adoption of the " commission city-manager form of government ” act, applies also to the 'creation of a new school board for the City of Albany, which was submitted at the same time to a vote of the qualified voters of Albany.

After all of the evidence in the present case was before the court the trial judge announced his rulings on the issues in the case, as appears from the bill of exceptions, as follows: 1. The court holds that the registration lists for the several wards as prepared by the registrars and delivered by them to the clerk of council of the City of Albany, and later delivered to the managers of the election and used in the election held December 4, 1922, were conclusive upon both the mayor and council in declaring the result of the election, and upon the court in the decision of this case, and neither of the tribunals could go behind the registration list to ascertain whether or not any of the voters named thereon, who did not vote in the election, should be counted and considered as qualified voters, in estimating whether a majority of the registered qualified voters of the City of Albany voted’ against the ratification of the acts mentioned in plaintiffs’ petition. 2. The court holds that the declaration of the result of the election by the mayor and council of Albany as a canvassing board, as shown by the resolution in evidence adopted December 12, 1922, is conclusive upon both the mayor and council as such board, and upon the court, and that the resolution was duly adopted and of force notwithstanding the fact that it was not signed by the mayor or entered on the minutes of the mayor and council, and that when the resolution was passed the power of the mayor and council as a canvassing board over the matter ceased, and they had no power to reconvene later as a canvassing board and pass the resolution of January 2, 1923, based partly upon evidence outside of the returns of the managers of the election; and therefore the resolution of January 2, 1923, is null and void, 3. The court holds also that those women voters whose names appear on the registration list prepared by the registrars for the election to be held on December 4, 1922, and used in said election, who had registered in 1921, and who did not vote in the election, who were otherwise qualified, were not disqualified to vote in the election of December 4, 1922, by reason of the fact that they had not paid any poll-tax for the year 1921. The court below held that the plaintiffs in this bill are not entitled to the injunction prayed for, but that the defendants who have prayed for injunction are entitled to the injunction prayed for by them. The rulings of the court below set out above have been treated in the foregoing divisions of this opinion, except as to the ruling made'in the third subdivision above with reference to the alleged disqualification of those women whose names appeared on the registration list, and also as to whether in a proceeding like the present the court could go behind the registration list in order to declare the election void if it should appear from such investigation that such is the case. Having held in the third division of this opinion that the consolidation of the vote of the election held on December 4, 1922, was prima facie correct, we are now called upon to decide whether or not in a proceeding like the present, attacking the election, the court may go behind the returns of the consolidating board and receive evidence establishing what votes were actually cast and whether the registration list contained names that should not be placed thereon. We are of the opinion that it is competent for the court to do so. Coleman v. Board of Education of Emanuel County, 131 Ga. 643 (63 S. E. 41); 9 R. C. L. 1113, § 116. And see Chapman v. Sumner School Dist., 152 Ga. 450 (2, e) (109 S. E. 129); Garrett v. Cowart, 149 Ga. 557, 564 (101 S. E. 186); Mayor v. Wade, 88 Ga. 699 (16 S. E. 21); Richter v. Chatham County, 146 Ga. 218 (91 S. E. 35); Mays v. City of Jackson, 147 Ga. 556 (94 S. E. 1006); Brown v. City of Atlanta, 152 Ga. 283 (109 S. E. 666); Brumby v. City of Marietta, 132 Ga. 408 (64 S. E. 321); Davis v. City of Dawson, 90 Ga. 817 (17 S. E. 110); Tanner v. Deen, supra; Hammond v. Clark, 136 Ga. 314 (71 S. E. 479, 38 L. R. A. (N. S.) 77). It is contended on the part of.the plaintiffs that there appears on the registration list of 1921 the names of 585 voters who were, while registered, not qualified to vote in the city election held on December 4, 1922, as required by law;, and that, deducting that number of votes from the registration list of 1921, the correct number was 2210, and those voting in the election of December 4, 1922, against the adoption of the amendment to the charter of the City of Albany, did not constitute a majority of the qualified registered voters for 1921; and therefore that the election.was not legally carried as provided in the act of 1922, supra. Evidence was offered by the plaintiffs, tending to establish the above contentions. An affidavit of Aubrey Allen was introduced in evidence in behalf of the plaintiffs, in which he deposed that he had made a personal investigation of the tax-digest of the County of Dougherty for the year 1921; that certain names that appeared on the registration list for that year do not appear on the tax-digest for that year, and that the names aggregate 501 in number; that from an examination of the tax-digest of Dougherty county for the years 1921-2 appears a list of names which do not appear on the tax-digest of Dougherty County for either of the years 1921 or 1922 as having paid their poll-tax; that the names appear on the registration list of the City of Albany for the year 1921, and that the names aggregate 314 in number; that on said list appear certain names which appear twice, the names appearing in separate wards, to the number of 39> and another list of 187 in number who had moved away from the city or had moved from one ward into another without reregistering in the ward in which they had moved, as required by law; that the registration list contained the names of 44 who had been registered in the year 1921, against whom were tax executions for unpaid taxes for 1921; that the registration list contained the names of various persons who, at the time the registration list was closed, and at the time the election was held on December 4, 1922, were dead, or not naturalized citizens, or were confined in the penitentiary, or were not qualified to vote in the election, to the number of 6; and that all the names above referred to appearing on the official registration list aggregate 585 in number. The defendants offered in evidence a certified copy of an executive order signed by Thomas W. Hardwick, Governor of Georgia, dated December 14, 1922, appointing H. A. Peacock of Albany, Georgia, recorder of the City of Albany, for a term of twelve months beginning the second Monday in January, 1923, “in accordance with the provisions of the act approved August 21, 1922.” Also a certified copy of the resolution passed September 14, 1922, providing for a board of registrars for the City of Albany consisting of “ three upright and intelligent citizens of the City of Albany, who shall be appointed, upon the passage of this ordinance, by the mayor and council for a term of not exceeding one year,” etc. The defendants also introduced a certified copy of a resolution passed December 12, 1922, by the mayor and council of Albany declaring the result' of the election of December 4, 1922, that “ neither of said acts having been voted against by a majority of all of the qualified voters of the city qualified to vote in said election, the question ‘for city-manager commission form of government ’ is hereby declared carried, and the question ‘ for new city school board ’ is hereby declared carried.” Plaintiffs then introduced in evidence certified copy of a resolution of the mayor and council of the City of Albany, dated January 2, 1923, purporting to declare null and void and to rescind the resolution of December 12, 1922, which has been heretofore alluded to in this opinion.

Of the 314 names appearing on the registration list for 1921 it is contended that 257 of the names were those of women who had not paid their poll-tax for the years 1921 and 1922/ and it is therefore insisted that these women whose names appear on the registration list were disqualified to register in 1921 and to vote in the election of December 4, 1922, and that therefore their names should not have appeared upon the registration list of 1921 as legally qualified voters in 1922.

The 19th amendment to the constitution of the United States became operative on August 26, 1920. The terms of that amendment are as follows: “ The right of citizens of the United States to vote shall not be denied or abridged by . . any State on account of sex.” The plaintiffs insist that upon the 19th amendment becoming effective women were subject to the payment of poll-tax the same as men, from that date, and that they were liable for the payment of such tax from the date on which such amendment became effective; and it is argued that from that date no State could require a poll-tax from men as a condition precedent to their right to vote, unless it also required the same poll-tax from all women as a condition precedent to their right to register and vote; for otherwise, it is argued, the State would be abridging the right of a man to vote by requiring of him the payment of a poll-tax, while it did not require the payment of such poll-tax from a woman as a condition precedent to her right to vote; and a decision of the Supreme Court of Alabama is cited in support of the proposition that under the 19th amendment to the constitution of the United States, women are required to pay poll-tax the same as men, as a condition precedent to their registering and voting. The decision alluded to is that of Graves v. Eubanks, 205 Ala. 274 (87 So. 587) (1, 2, 3), where it was held: “ Constitution U. S. Amendment 19, giving women the right to vote, automatically struck out from the State constitution and statutes all discriminatory features authorizing only one sex to vote, or placing conditions or burdens on one not placed on the other as a condition precedent to the right to vote. £. Constitution U. S. Amendment 19, providing that the right to vote shall not be denied or abridged on account of sex, automatically struck from constitution Alabama 1901, p. 177, the word ‘male/ as used in defining who are or who may become electors. 3. Constitution TJ. S. Amendment 19, providing that the right to vote shall.not be denied on account of sex, made Constitution of Alabama 1901, p. 178, 194, making the payment of a poll-tax a condition precedent to the right to vote, applicable to women as well as men,” And it is insisted that the Supreme Court of Georgia approved the decision of the Alabama Supreme Court in the Graves case, supra, saying: “ The 19th amendment to the constitution of the United States, providing that the right to vote shall not be denied or abridged on account of sex, is self-executing, and removed the electoral disqualification on account of sex.” In Brown v. Atlanta, supra, this court said: “ The constitution of the United States is the supreme law of operation in this State. Civil Code (1910), § 1. The 19th amendment became automatically operative on August 26, 1920. Graves v. Eubanks, 205 Ala. 174 (87 So. 587). We are of the opinion that that amendment is self-executing, and that under it females are not now disqualified on account of their sex to register and to vote, but on the contrary they are qualified.” Civil Code § 917, before it was amended, read as follows: “ Upon each and every male inhabitant of the State, between the ages of 21 and 60 years on the days fixed for the return of property for taxation, a poll-tax of one dollar, which shall be for educational purposes in instructing children in the elementary branches of an English education only; provided, this tax shall not be demanded of blind persons, nor persons who have lost a limb or limbs, or the úse of the same, while actually engaged in the military service oE the late Confederate States.” Under the ruling in the Brown case females were not disqualified on account of their sex to register and to vote because they had not paid a poll-tax, and thus the law stood until August 15,1921, when the legislature passed an act (Acts 1921, p. 38, sec. 2, par. 1) providing that “Upon each and every ihhabitant of the State between the ages of 21 and 60 years on the days fixed for the return of- property for taxation a poll-tax of one dollar, which shall be for educational purposes,” etc. The only difference between the act of 1921 and Civil Code § 917, quoted above, is that the word “male” is stricken; and it was the evident purpose of .the legislature by the act of 1921 to impose a poll-tax upon women, where it had not been imposed before. Section 1 of the above-recited act of 1921 provides that “ the terms and provisions of this act shall not take effect and become operative until January 1, 1922, and shall continue thereafter.” Therefore, by the express terms of the act itself, no poll-tax was imposed upon women of the State of Georgia until January 1, 1922. Of course the statute could not be retroactive. The election in the present case was held on December 4, 1922. Art. 2, see. 1, par. 3, of the constitution of Georgia (Civil Code of 1910, § 6397) provides that “ To entitle a person to register and vote at anjr election by the people, he shall have resided in the State one year next preceding the election, and in the county in which he offers to vote six months next preceding the election, and shall have paid all taxes which may have been required of him since the adoption of the constitution of Georgia of 1877, that he may have had an 'opportunity of paying agreeably to law. Such payment must 'have 'been made at least six months prior to the election at which he offers to vote, except when such elections are held within six 'months from the expiration of the time fixed by law for the payment of such taxes.” No poll-tax was required to be paid by women in this State until January 1, 1922, and the expiration of the time fixed by law for the payment of taxes for that year was December 20. Civil Code (1910), § 1229; Acts 1917, p. 197. The election was held on December 4, 1922, prior to the expiration of the time for the payment of taxes for that year; and therefore under the constitutional provision above quoted, if their names appeared on the registration list for 1921, they were legally qualified voters so 'far as not having paid a poll-tax for the year 1922 is concerned. Holding, therefore, that the 257 women whose names appeared on the registration list of 1921 to be -qualified legal voters so far as the nonpajment of a poll-tax.for the' 3'ear 1921 or 1922 is concerned, the elimination of those names was illegal. In the affidavit of Aubrey Allen, a witness for the plaintiffs, he states that he struck from the registration list of 1921 314 names, on the basis that he had examined the tax-digest of Dougherty County for the years 1921 and 1922, and that those 314 names do not appear on such digest for those years, and that none of the persons bearing said names paid their poll-tax required by law. This number, which includes the names of .the 257 women, must be reduced by that number and the 257 names restored to the registration list, which plaintiffs contend contains only 2210 legally qualified voters, thus making a total of 2467, and a majority of that number would be 1234. There were only 1173 votes cast against the city-manager commission form of government, and the school-board act; and therefore a majority of the legally qualified voters not having voted against the acts, under their terms, they went into effect, a sufficient number of votes‘not having been cast against them. Having reached this conclusion, it becomes unnecessary to pass upon the qualifications of the other names purged from the registration list of 1921 by the finding of Aubrey Allen, which was adopted by the mayor and council of the City of Albany.

Judgment affirmed.

All the Justices concur, Beck, P. J., and Atkinson and Hines, JJ., specially.