Andrews v. Butts County

29 Ga. App. 302 | Ga. Ct. App. | 1922

Broyles, C. J.

1. The office of a county registrar is not “a county office ” within the meaning of the statute (Ga. L. 1913, p. 135, § 4) which provides that a member of a board of county tax-assessors shall be ineligible to hold any other State, county, or municipal office. County officers are virtually defined by the constitution of this State (art. 11, sec. 3, par. 1, Civil Code of 1910, § 6599) as officers who are elected -by the qualified voters of their respective counties, or districts, and who hold office for four years, and who can only be removed from office on conviction for malpractice in office. A county registrar is not elected by the qualified voters of his county or district, but is appointed by the judge of the superior court of the county, and can be removed from office at the will of the.judge. See, in this connection, McLain v. State, 71 Ga. 279 (3), 284; Barnes v. Watson, 148 Ga. 822 (4) (98 S. E. 500); Richter v. Board of Education, 149 Ga. 32 (3) (99 S. E. 28).

2. This was a proceeding to validate an issue of road and highway bonds to be issued by Butts county. Upon the hearing certain citizens and tax-payers of the county filed their intervention opposing the validation of the bonds. Paragraph 12 of the intervention was as follows: “ Intervenors say that they were denied the privilege of contesting the right of 291 persons whose names appear on Exhibits ‘ A ’ and c B ’ to have their names remain on the registration lists, and the voters’ lists, as is provided by section 65 of the code, and said lists, for this reason, are void. They were also denied the right to restore the names of 110 illegally stricken and set out in Exhibit ‘ C ’, and they were denied the privilege of contesting the right of those nanles set out in Exhibit ‘ B ’ to remain on said lists and the registration book.” The demurrer to paragraph 12 was as follows: “ The allegations of paragraph 12 are asked to be stricken for the reason that they are too vague, uncertain, and indefinite, there being no allegation alleging how or in what manner intervenors were denied the right to be heard, who denied them these rights, whom they applied to, when they applied, and no allegation showing denial of any privilege asked, or requested, and no allegation showing acts on the part of any one forbidding their being heard.” The allegations in this paragraph were clearly subject to the special demurrer interposed, and as the intervenors offered no amendment to meet the demurrer, the court did not err in striking the paragraph. There is no contention by the plaintiff in error that he was denied an opportunity to so amend, nor is there any assignment of error upon the ground that the court erred in striking the paragraph upon a special demurrer without giving the plaintiff in error time in which to amend. Moreover, there was no evidence introduced upon the hearing which even tended to show that the result of the bond election would have been different if the names of the -291 persons had been stricken from the voters’ list, and if the names of the 110, persons, alleged to have been illegally stricken therefrom, had been restored thereon. It follows that even conceding the court erred in striking the paragraph, the error was harmless.

3. Upon the trial the court admitted in evidence a certificate of the registrars of the county, showing the number of qualified voters for the bond election. The intervenors objected to this evidence, on the ground that the only legal way to show that fact would be by the introduction of a certified copy of the .list of registered voters as prepared by the registrars and filed with the clerk of the superior court of the county. Conceding, but not deciding, that the court erred in admitting this evidence, the error was harmless, since subsequently to this ruling the list of the registered voters of the county as prepared by the registrars was introduced in evidence. It is true that this list was not marked “filed” by the clerk of the superior court, but the undisputed evidence was that the registrars handed it to the clerk or laid it upon his desk, accompanied by the request that he file it. This was a sufficient compliance with the statute which requires the registrars to file the list with the clerk. It is well settled that the failure of a ministerial officer to perform his duties will in no case be allowed to work injury to a party in nowise responsible for such neglect of duty. See Civil Code (1910), §5709. The actual placing of a paper in the hands of the clerk of a trial court, or his deputy, or the placing of the paper upon his desk, accompanied by the request that it be filed, is, in law, a legal filing. Cooper v. Nisbet, 119 Ga. 752 (47 S. E. 173), and citations.

■ (a) The fact that the registrars, in preparing the list of qualified voters for this special election, took the old list of qualified voters and revised it, adding new names of voters thereto, and filed ■it instead of filing a supplemental list as provided by the statute, was a mere irregularity, as this part of the statute -is directory only, and not mandatory, and it does not appear that this noncompliance with its requirements had any effect upon the result of the election. See, in this connection, Civil Code (1910), §126; Spencer v. City of Columbus, 150 Ga. 312 (103 S. E. 464), and citations; 36 Cyc. 1157.

4. Under the evidence introduced by Butts county, the court did not err in holding that it had made out a prima facie case.

5. Under all the evidence adduced upon the hearing, the court did not err in rendering a judgment validating and confirming the bonds.

6. The assignments of error not here dealt with are not referred to in the brief of counsel for the plaintiff in error and are treated as abandoned.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.