Goolsby v. Stephens

117 S.E. 439, 155 Ga. 529, 1923 Ga. LEXIS 118

• Court: Supreme Court of Georgia
• Decided: May 4, 1923
• Docket: Nos. 3302, 3303
• Status: Published

Opinions

Hines, J.

(After stating the foregoing facts.)

1. This case involves the construction of art. 7, sec. 7, par. 1, of the constitution of this State, as it now stands after the amendment of 1918. Acts 1918, p. 99. This provision of the constitution, prior to this amendment, was this: ■ “ The debt hereafter incurred by any county, municipal corporation, or political division of this State, except as in this Constitution provided for, shall not exceed seven per centum of the assessed value of all the taxable property therein, and no such county, municipality, or division shall incur any new debt, except for a temporary loan or loans to supply casual deficiencies of revenue, not to exceed one fifth of one per centum of the assessed value of taxable property therein, without the assent of two thirds of the qualified voters thereof at an election for that purpose, to be held as may be prescribed by law.” Civil Code, § 6563. Under this provision as it stood before this amendment, a municipal corporation could not incur any new debt, except for temporary loans to supply casual deficiencies of revenue, “without the assent of two thirds of the qualified voters thereof at an election for that purpose.” The effect of this provision was to require the assent of two thirds of all the qualified voters of the municipal corporation, before it could incur a new debt. It was not sufficient to get the assent of two thirds of those voting at an election held for the purpose of incurring a new debt; but the requirement of this provision, before the above amendment, demanded the assent of two thirds of all the qualified voters of the municipality, before the latter could incur a new debt. It followed that qualified voters of the municipality, who were opposed to incurring the new debt, need not vote, in order to defeat it. A voter’s refraining from voting was equivalent to a vote against the creation of the new debt.

The constitution did not provide the method of ascertaining whether- two thirds of the qualified voters had given their assent to the creation of a new debt. This was left to the legislature. So the legislature passed the act of Oct. 14, 1879 (Acts 1878-9, p. 40), now embraced in the Civil Code (1910), § 443, which declares: “ 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 thereof.” But “ whenever the legislature has provided for a registration of voters in a municipality, the number of voters registered thereunder is the true test for ascertaining whether the requisite two-thirds majority of the qualified voters of such municipality has been obtained at an election for which such registration was provided, and in which the assent of such a majority was requisite to empower the municipality to incur an indebtedness under the constitution of 1877.” Gavin v. Atlanta, 86 Ga. 132 (12 S. E. 262); Mayor &c. of Madison v. Wade, 88 Ga. 699 (16 S. E. 21); Mayor &c. of Decatur v. Wilson, 96 Ga. 251 (23 S. E. 240); City Council of Dawson v. Waterworks Co., 106 Ga. 696, 730 (32 S. E. 907); Floyd County v. State, 112 Ga. 794, 802 (38 S. E. 37); Slate v. Blue Ridge, 113 Ga. 646 (38 S. E. 977). The registration provided for must be applicable to all municipal elections, or at least must include elections for the purpose of incurring a new debt. Carver v. Dawson, 99 Ga. 7 (25 S. E. 832); Kaigler v. Roberts, 89 Ga. 476 (15 S. E. 542); Howell v. Athens, 91 Ga. 139 (16 S. E. 966); City of Thomasville v. Thomasville Light &c. Co., 122 Ga. 399 (50 S. E. 169); Gracen v. Savannah, 142 Ga. 141 (82 S. E. 453). Where there is no better test than that prescribed in this section of the Code, the rule laid down therein may be followed. McKnight v. Senoia, 115 Ga. 915, 916 (42 S. E. 256); Mays v. City of Jackson, 147 Ga. 556 (94 S..E. 1006). So whenever the legislature confers upon cities the power to provide for registration of voters at elections held to determine whether or not a new debt shall be incurred, and such registration is provided for by proper ordinances, this furnishes a better test to determine whether the requisite majority of voters voted in favor of such debt, than’ does this section of the Code. So the general registration law is applicable to all county elections, and, since its enactment, reference to the tally-sheets of the last general election is not the legal method of determining the number of qualified voters in the county voting in an election to determine whether a county debt shall be incurred or not. Floyd County v. State, supra. We have referred to these decisions to show that the method of this section of the Code is not exclusive, and must yield to any better test fixed by law. The application of this principle will be made, after we have considered the scope and effect of the amendment of 1918 to the provision of the constitution which we have under consideration.

The pertinent portion of art. 7, sec. 7, par. 1, of the constitution of this State, as amended in 1918, is as follows: “The debt hereafter incurred by any county, municipal corporation or political division of this State, except as in this Constitution provided for, shall not exceed seven per centum, of the assessed value of all the taxable property therein, and no such county, municipality, or division shall incur any new debt, except for a temporary loan or loans to supply casual deficiencies of revenue, not exceeding one fifth of one per centum of the assessed value of the taxable property therein, 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 all 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 law providing for such special registration.” This amendment (Ga. Laws 1918, p. 99) made some vital changes in the original provision in the constitution of 1877 upon the subject of incurring new debts by counties, municipal corporations, and other political divisions of the State. Instead of requiring the assent of two thirds of all qualified voters in these political divisions to the creation of such debts, this provision, as amended, requires the assent of only two thirds of the qualified voters thereof voting at an election for this purpose, to be held as prescribed by law, provided said two thirds so voting shall be a majority of the registered voters. This is one of the drastic changes of this amendment. The assent of two thirds of the qualified voters voting, provided they are a majority of the registered voters, is now only required to authorize the debt. To incur the debt, the county, municipality, or other division must have two thirds of the qualified voters voting, and a majority of the registered voters.

The next vital change is the method of determining whether the assent of two thirds of the qualified voters, and a majority of the registered voters, has been secured. Eesort to the tally-sheets of the last general election is no longer the method. A resort to that method would be. wholly ineffective. This amendment to the constitution contemplates registration of the voters. While resort to these tally-sheets was formerly available to ascertain whether two. thirds of the qualified voters favored the creation of a debt, it furnishes no means for ascertaining whether a majority of the registered voters favored the incurring of the debt. Without registration it is impossible to determine whether a majority of the registered voters favor the debt. But it may be said that this provision does not apply where there is no provision of law for registration. This would make the operation of a constitutional provision depend upon the whim of the legislature. The constitution is the supreme law. It supersedes all legislation in conflict with its provisions. This provision is supreme. It demands, by implication, registration before a municipal corporation 'can contract a debt, because a majority of the registered voters must give their assent to its creation. Without registration there can be no election for this purpose. This is in accordance with the provision of the constitution fixing the qualification of voters. Under art. 2, sec. 1, par. 1, of the present constitution, “ only those persons shall be allowed to vote who have been first registered in accordance with the requirements of law.” Civil Code (1910)> § 6395. Now registration is one of the qualifications of voters; formerly it was the means of this identification. Mayor &c. of Madison v. Wade, supra; Chapman v. Sumner Con. School Dist., 152 Ga. 456 (109 S. E. 129).

The next change is “ that all 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 . . declared to be null and void; and the General Assembly shall hereafter have no power to pass or enact any law providing for such special registration.” Thus all special registrations are done away with; and the power of the legislature to provide for them has been withdrawn. Hereafter elections must be held under general registrations applicable to all elections to be held in the given political divisions. Moreover, a municipal election can not be held under a county registration. Floyd County v. State, supra. Such an election must be held under general municipal registration.

So we. reach the conclusion, that, as there was no charter provision or ordinance for registration of the voters in the City of Eorsyth, and in fact no registration of voters within the city, the election for the purpose of issuing its bonds was null and void. The court erred in holding that the tally-sheets of the last general election in that city could be looked to to determine whether or not two thirds of the qualified voters and the majority of the registered voters of that city had voted for these bonds. In consequence of this ruling, the' court erred in making the mandamus absolute.

2. Two questions are raised in the cross-bill of exceptions. Certain citizens and taxpayers of the City of Forsyth intervened in this cause; and asked to be made defendants for the purpose of opposing the grant of the mandamus. The plaintiffs objected to the intervenors being made parties, on the ground that they were not proper parties. The court overruled this objection, and passed an order making the intervenors parties defendant; and the plaintiffs, in their cross-bill of exceptions, assign error on this ruling. But in their brief counsel for the plaintiffs in error-in the cross-bill expressly waive the decision of this point, in order that the court may pass upon the main contentions raised in the direct bill of exceptions. For this reason we make no decision upon this question.

The second question raised in the cross-bill of exceptions is this: the plaintiffs offered an amendment to their petition, in which they alleged that a portion of section 1 of the act of Aug. 20, 1918, proposing to amend art. 7, sec. 7, par. 1, of the State constitution, is unconstitutional and void, because in conflict with art. 3, sec. '7, par. 8, of the State constitution, which declares 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.” This court has twice held that this provision of the constitution is not applicable to proposals by the legislature to amend the constitution. Cooney v. Foote, 142 Ga. 647 (83 S. E. 537, Ann. Cas. 1916B, 1001); McCall v. Wilkins, 145 Ga. 342 (89 S. E. 219). We have been asked to review and overrule the case of Cooney v. Foote. This would be useless unless McCall v. Wilkins were overruled. Furthermore, we see no reason why these cases should be overruled.

The next point raised in the cross-bill of exceptions is that this amendment was not adopted in accordance with art. 13, sec. 1, par. 1, of the State constitution, which provides for the submission to the people for adoption of proposed amendments to the eonstitution of this State. The point made is that the only portion of this proposed amendment which was submitted to the people for ratification is that printed upon the form of ballots to. be cast by those in favor of its ratification. This point is not well taken. Section 3 of the act proposing this amendment provides that the entire amendment should be submitted to the electors of the State for ratification or rejection. It was not necessary that the entire amendment should have been printed on the ballots. The reference on the ballots to the proposed amendment is to inform the voters what they are voting for as an amendment to the constitution; and such reference is sufficient when it contains enough to enable the voters to ascertain for what amendment they are voting. When this is done, the voters can be fully informed as to its full provisions by looking .to the proposed amendment. What is adopted as an amendment to the constitution is not what is printed on the ballots, but what is contained in the proposal for amending the constitution. The submission of the proposed amendment was sufficient. So we are of the opinion that this attack upon the constitutionality of this amendment is not well taken.

Judgment reversed on the main Mil of exceptions, and affirmed on the cross-bill.

All the Justices concur, except Bussell, G. J., and Beck, P. Jdissenting.