Brown v. City of Atlanta

152 Ga. 283 | Ga. | 1921

Hill, J.

(After stating the foregoing facts.)

1. On August 19, 1918, the legislature passed an act (Acts ■1918, p. 915) proposing an amendment to the constitution of the State of Georgia, as follows: “Deserving to the municipal corporations the benefit of all provisions of the constitution of force in this State, the General Assembly is hereby empowered to authorize any municipal corporation within the State, having a population of one hundred and fifty thousand or more, according to the census of the United States government taken next preceding the approval of any act passed in pursuance hereof, to incur a bonded debt or debts for the public purposes- of such municipality, the said debt or debts so to be incurred to be for such sums and to be secured after such manner, and to be paid, principal and interest, at such times and such places and by such means and upon such terms as the General Assembly may prescribe. Provided, however, that no act conferring the powers aforesaid, or any of them, shall become operative until the same shall have been affirmed at a general election held for the election of a mayor and general council in such municipality by two. thirds of the qualified voters thereof who may vote at said election. Such two thirds to constitute at least a majority of the qualified voters of said municipality.” This proposed amendment to the constitution of the State was subsequently ratified by the people at a general election held in November thereafter, and is known as the Atkinson amendment, so called because it was introduced and pressed to passage by the late lamented Judge Spencer R. Atkinson, a former member of this court. The bond election held, on March 8, 19B1, as set out in the foregoing statement of facts, was evidently held with reference to the time of its holding under the constitutional provision as it existed prior to the amendment above set out. This provision 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 count}, 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; but any city, the debt of which does not exceed seven per centum of the assessed value of the taxable property at the time of the adoption of this constitution, may be authorized by law to increase, at any time, the amount of said debt, three per centum upon such assessed valuation ; ” etc. The intervenor in the present case contends that the constitutional amendment referred to above is exclusive so far as the City of Atlanta is concerned, inasmuch as the City of Atlanta has a population of one hundred and fifty thousand and more, and therefore that it falls within the class to which the amendment exclusively applies; and that the City of Atlanta, after the adoption of the Atkinson amendment to the constitution, must vote bonds, if at all, as provided in the constitutional amendment, and that it could not vote for bonds under any other provision of the constitution. With reference to this phase of the case, therefore, the question is whether the above constitutional amendment of 1918, known as the Atkinson amendment, is exclusive, or whether it is merely cumulative of the power to issue bonds under that provision of the constitution last above quoted. We are of the opinion that the amendment is not exclusive, but is merely cumulative. It will be observed that the first sentence of the amendment begins with “Reserving to municipal corporations the ben-' efit of all provisions of the constitution in force in this State, the General Assembly is hereby empowered,” etc. This language is broad enough to cover all the municipal corporations of the State, including Atlanta with her population of more than one hundred and fifty thousand. This amendment was evidently passed and adopted with the view to authorizing cities of the class indicated to incur a bonded debt or debts for the public purposes of such munieipalit)', without- reference to the amount of such bonded indebtedness, etc., because the amendment provides that the debts so to be incurred may be “for such sums and to be secured after such manner, and to be paid principal and interest at such times and places and by such means and upon such terms as the General Assembly may prescribe.” It will be seen, therefore, that there is no limit as to the amount of the debt to be incurred or the time when such principal and interest may become due under the amendment to the constitution. But, in order to safeguard the taxpayers of the municipality against an unreasonable and unlimited amount of bonds being issued, no doubt, it is provided that no aci conferring the powers above mentioned shall become operative until the same shall have been affirmed at a general election held for the election of a mayor and general council in such municipality by two thirds of the qualified voters thereof who may vote at such election, etc. The amendment is not, therefore, self-executing. It requires an enabling act to carry it into effect; and while such enabling act was passed (Acts 1919, p. 260), it has never been ratified or adopted by the City of Atlanta as required by the amendment to the constitution, so far as the record discloses, and it is inoperative until it has been so ratified. Therefore the City of Atlanta, while coming within the class designated in the Atkinson amendment, still has the power and authority to issue municipal bonds under art. 7, sec. 7, par. 1, of the constitution of the State of Georgia (Civil Code of 1910, § 6563), as quoted above; ■and this election was evidently held under this provision of the constitution. We are of the opinion that neither the legislature nor the people meant by the Atkinson amendment to take away from municipalities of the class designated in that amendment the right to issue bonds; and if the Atkinson amendment is held to be exclusive, it would have that effect, inasmuch as the enabling act has never been, and may never be, ratified or affirmed. The enabling act of 1919, supra, passed in pursuance of the constitutional amendment, provides that municipal corporations of this State having a population of one hundred and fifty thousand or more are empowered and authorized to incur a bonded debt or debts for the public purposes of such municipality, provided that the issuance of such bonds “is voted affirmatively at a general election held at the same time that the election of the mayor and general council of such municipalities is held, by two thirds of the qualified voters thereof who may vote at said election, said two thirds to constitute at least a majority of the qualified voters of such municipality.” It is contended by the intervenor that the present bond election is invalid, because it was not held at a general election held at the same time that the election of mayor and general council of the City of Atlanta was held. As said above, the Atkinson amendment not being exclusive nor self-executing, but only cumulative, “ an election for that purpose, to be held as may be prescribed by law,” and in conformity with art. 7, sec. 7, par. 1, of the constitution of the State (Civil Code, § 6563), would be valid though not held at a general election, provided, of course, all other legal requirements were complied with. Civil Code, § 440.

2. Another objection offered by the intervenor against the validation of. the bonds voted at the election of March 8, 1921, is that it contravenes what is known as the Brown amendment to the constitution. That amendment was proposed by the legislature at the same session which proposed the Atkinson amendment, supra, viz., in August, 1918, and was subsequently ratified by the people at the general election held in November, 1918. The Brown amendment provides, “That paragraph 1, section 7, article 7 of the constitution of this State be . . amended by inserting between the word 'thereof’ and the word 'at,’ as they occur in the tenth line of said paragraph, the following: 'voting, 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, but the validity of any and all bond issues by such counties, municipal corporations, or other political divisions, made prior to January 1, 1918, shall not be affected hereby.” It will be seen that the Brown amendment provides that all laws, charter provisions, and ordinances heretofore passed or enacted, providing special registration of the voters of municipal corporations, to pass upon the issuance of bonds, are declared to be null and void. The question raised therefore is whether the registration preceding the bond election of March 8, 1921, is a special registration, or whether it is a general registration. It must be conceded that if it is a special registration, the Brown amendment being self-executing and not requiring an enabling act to carry it into effect, as is the case in the Atkinson amendment, the registration would, by the terms of the amendment, be null and void, and consequently an election held under, it would likewise be invalid. But we do not think that the registration of the voters for the bond election in the instant case is a special registration, but on the contrary that it is a general registration, as we shall endeavor to show. The Brown amendment changed the provision of the constitution as to the method of ascertaining the registered vote, and as to the method of registration. It prohibits special registrations, and requires that in all elections on the question of the issuance of bonds the political subdivisions of the State, including municipalities, should use the general registration list. The evidence in the record shows that the registrar, who was the tax-collector of the County of Fulton of which Atlanta is the county site, was created the registrar, not only for the State and county, but also for the City of Atlanta. He testified: " All persons were registered who made oath that they had paid all taxes except those for the current year, and answered the questions which qualified them to vote. I put those on the registration list. . . Every one that came around there to register, that was qualified, was registered. I had no complaint from any person that they were qualified to register and had not been allowed-to register; and if there had been trouble on this line, they would naturally have come to me as registrar. . . We used certificates as a supplemental list. Books of registration were open at the city hall and at the .tax-collector’s office. There were two windows; one for white and one for colored. . . People whom I registered were not registered separately for the State and county. There was only one registration as to these voters, both city and county at the same time. . . I have only one list of registration, city, State, and county; and the list I made up for the city in the election was from that list, and those people took the oath that they had paid all taxes. If another election was called this year, say in December or October, I will use the same registration list as was made up for the city election, plus any additions that might come in between now and then. A party is not required to register but one time, and I would add to it any party who registered for another election, city, State, and county. They do not register any more.” It appears also that females as well as males who qualified were permitted to register and vote. It appears that any person who registered between January 1, and March 8, 1921, and others who had previously been registered prior thereto, and who made the oath that they had paid the taxes required of them the year previous to registration, were put on the list and permitted to vote, and any person so'registering was put upon the permanent registration list. The charter of the City of Atlanta was amended in 1893 (Acts 1893, p. 172), so that section 154 of the charter-as amended reads as follows: “That the mayor and general council of said city shall have full power and authority to provide for the registration of voters prior to any municipal election in said city; to make all needful rules and regulations for the same, and require that no person be permitted to vote unless registered as aforesaid; to constitute and appoint the tax-collector of Fulton County to the office of registrar of said city; to fix his compensation as such registrar,- and when so appointed to require him to perform the duties of said office.” Section 2 of the act provided: “ That the registration intended under this act shall take effect at such time as the said mayor and general council shall fix by ordinance, and until then the present mode of registration for said city shall exist.” In pursuance of this amendment to the city charter, ordinances were adopted by the city carrying this legislation into effect. These ordinances were attached to and made a part of the answer of the city in this case, and they designated the tax-collector of Fulton County or his assistants as authorized to register qualified voters of the city as they paid their taxes annualy. Section 2131 of the City Code of Atlanta provides: “ It shall be the duty of the tax-collector of Fulton County or his assistants to register the qualified voters of said city as they pay their taxes annually. For this purpose he shall have prepared printed blanks, containing the oath required of the' voters proposing to register, in the form prescribed in this ordinance, and it shall be his ,duty to administer to such taxpayer wishing to register the required oath; and the voter shall subscribe to said oath in the presence of such collector or his assistants, who shall preserve all of said affidavits, and from them shall compile a book for each ward showing the names and residences of the qualified voters for each ward, giving streets and numbers, or, if no number, then giving the street each side or nearest to the numbers on street in front.” Section 2133. “ The collector, or his assistant, shall also register qualified voters taking the prescribed oath, even if they do not pay or offer to pay the taxes for the current year, and place their names on the books of their respective wards, as provided in the preceding sections,” etc. And then follows the oath to be required of all voters registering their names. It seems, therefore, that the charter amendment of the City of Atlanta and the ■.ordinances passed in pursuance thereof, provided for a general and not for a special registration. A special registration as distinguished from a general registration is one designed for a particular election and which becomes functus officio when the election under which it was held has been had, that is to say, when the registration can not be used for any other purpose. A general registration is one made up under general rules. In view of the foregoing and the evidence adduced on the trial, we hold that the registration for the election held on March 8, 1921, was a general and not a special registration. See Pol. Code (1910), §§ 41, 43, 46. And in so far as the two foregoing exceptions to the judgment of validation are concerned, the bonds which were validated by the trial judge were authorized by the election as provided in art. 7, sec. 7, par. 1, of the constitution as amended by the Brown amendment. Under the Brown amendment to the constitution two thirds of the qualified voters voting at an election to incur a debt by the municipal corporation by the issuance of bonds, as prescribed by law, shall be sufficient for that purpose; provided, that two thirds of the voters so voting shall be a majoritj of the registered voters, etc.

3. Exception is also taken to the judgment validating the bonds; and it is insisted that the same was void, because it did not affirmatively appear that the persons who voted in favor of the bonds constituted a majority of the registered voters of the city. It is insisted that art. 2, sec. 1, par. 1, of the constitution (Civil Code (1910), § 6395), provides one of the qualifications of voters in this State. This constitutional provision is as follows: "After the year 1908, elections by the people shall be by ballot, and only those persons shall be allowed to vote who have been first registered in accordance with the requirements of law.” Intervenor insists, under this constitutional requirement, that the registrar did not require voters to comply with this provision as to registration, in that a large number of voters, including ten thousand women, had not qualified as registered voters of this State under the constitution and statutes passed in pursuance thereof, and that this so invalidates the list that was made up that it is impossible for the court to determine from the evidence what was the number of registered voters legally voting; and the plaintiff in error contends that the burden of furnishing the proof by which the court could ascertain the number of legally registered voters in the City of .Atlanta on the date of the election, in order to determine whether the bonds in question have been authorized by a majority of the legally registered voters of the city, was upon the plaintiff, and that this burden was not carried. It appears from the record that the oath to be required of all voters registering their names shall be in the following form: “ Georgia, Fulton County. I do swear, or affirm, that I am a citizen of the United States; that I am twenty-one years of age, or will be on the —■— day of - of this calendar year; that I have resided in this State for one year, and in this county for six months, immediately preceding the date of this oath, or will have so resided on the - day of this calendar year; that I have paid all the taxes which, since the adoption of the constitution of 1877, having been required of me, except taxes for this year; that I possess the qualifications of an elector re-’ quired by the constitutional amendment adopted in 1908; and that I am not disfranchised from voting by reason of any offense committed against the laws of the State. I further swear, or affirm, that I am a citizen of Atlanta, and reside in the-ward of the City of Atlanta, at No.-on-street, or in the-district G. M. My age is-, my occupation is-.

(Sign here)

Sworn to and subscribed before me this — 1921. Registrar.”

The city registrar testified that all those whose names were placed upon the general registration list for the city subscribed to that oath. As to the registration of women voters, the plaintiff in error contends that “If enabling legislation be necessary to carry the last amendment of the Federal constitution into effect, that legislation has not been enacted.” The nineteenth amendment to the constitution of the United States provides that the right of suffrage shall not be denied on account of sex. The constitution of the United States is the supreme law of operation in this State. Civil Code (1910), § 1. The nineteenth amendment became automatically operative on August 26, 1920. .'Graves v. Eubank, 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. Graves v. Eubank, supra. In Neal v. Delaware, 103 U. S. 370 (26 L. ed. 567), the question was what effect the fifteenth amendment to the constitution of the United States had upon the laws of Delaware, which were to the effect that all jurors should be “white male electors.” It was held that the fifteenth amendment had the effect, ex proprio vigore, of striking. from the laws of Delaware the word “white,” and left the remainder of the law intact. So we think in the present case, where the nineteenth amendment strikes the word “male,” as used in defining who may become qualified voters. The evidence in the case discloses ythat all of the females who registered swore that they had paid all taxes due by them, etc. And when they subscribed to the oath prescribed by the city, they were entitled to be registered and to vote in the municipal election. Civil Code (1910), § 41 et seq. We are also of the opinion that where the attention of the voters was called to the contents of the oath by the city registrar, and they subscribed their names thereto, as testified by the city registrar, although they were not formally sworn, this was a substantial compliance with the requirement of the provision of the city code as to administering the oath to such person qualifying for registration. Civil Code (1910), §§ 41-46, as to this being sufficient. And see Brumby v. Marietta, 132 Ga. 408 (2), 410 (64 S. E. 321). See Civil Code (1910), §§ 42, 43. And when the plaintiff has thus made a prima facie case as to who constitute legal voters in said election, and that is denied by the intervenor, the burden of proof is shifted from the plaintiff to the intervenor to overcome the evidence offered by the plaintiff. The intervenor offered no evidence. In the case of Harrell v. Whigham, 141 Ga. 322, 325 (80 S. E. 1010), it was said: “If the petition of the solicitor-general has alleged the facts required by the statute, and citizens are made parties for the purpose of contesting the validation of the bonds, necessarily they stand as quasi defendants. When they deny the substantial allegations of the petition of the solicitor-general, this places upon him the burden of proving such allegations. In certain cases, where citizens who have become parties raise objections which do not appear in the pleadings between, the solicitor-general and the municipality, but which depend for their support upon aliunde evidence, the burden of sustaining such allegation is upon the citizens alleging them. Spencer v. City of Clarkesville, 129 Ga. 627 (59 S. E. 274). This may be analogised to the affirmative pleadings of a defendant in an ordinary action at law. In ordinary lawsuits, an allegation by the plaintiff and a denial by the defendant puts the burden upon the plaintiff. If the defendant sets up an additional affirmative plea, as to it the burden is upon him.” As said above we think the plaintiff made out a prima facie case. In the Spencer case, supra, the third headnote is as follows: “When an intervenor in a proceeding for the validation of bonds interposes objections based upon facts which do not appear in the pleadings of the parties, but which depend for the proof of their existence upon aliunde evidence, the burden is upon him to prove the alleged facts thus set up.” The intervenor offered no evidence at all. He does not show by evidence, or otherwise, how many, if any, of the females who were registered and voted, did so illegally. But assuming that all of the ten thousand registered females who voted, as shown by the record, were registered and voted illegally, still if all of these were deducted from the total number of registered votes, as shown by the record, viz., 27,070, this would leave 17,070 male registered voters. It appears from the record that the highest number of votes cast in favor of any issue of bonds was for public schools, viz., 21,633, and the smallest number cast for any issue of bonds was 21,194; and that the highest vote cast against any issue was 1034, and the smallest vote cast against any issue was 513. So the vote cast for each of the issues of bonds was above 21,000 votes. Assuming therefore, that all of the 10,000 females were disqualified, and that all voted for the bonds, deducting this number from the 21,000 votes cast for the various issues of bonds, this would leave 11,000 as voting for bonds out of the 17,070 registered male voters. Adding the highest number of votes cast against any issue of bonds, viz., 1034, to the number of votes for that issue, we have a total of 12,034 votes cast. The number of affirmative votes is therefore obviously more than two thirds of the qualified voters who voted at said election, as well as a majority of the qualified voters of such municipality. Therefore, even if the 10,000 female registered voters should be excluded, the result of the election is the same, the bonds having received the requisite constitutional majority. See, in this connection, Civil Code (1910), § 126. Epping v. Columbus, 117 Ga. 263 (16), 285 (43 S. E. 803); Brumby v. Marietta, supra.

4. It is insisted that a reversal of the judgment of the court below validating the bonds should be had, because the plaintiff did not carty the burden of proof in making out the case for validation. It is argued that the only proof as to the vote on the bonds was the introduction of the copy from the minutes of the city council, certified b.y the clerk, purporting to show a consolidation of the vote by the council, not jointly with the managers of the election, as required by the statute, but upon the returns previously made to them by the managers. We have already referred to the question of the burden of proof in such cases, in a preceding division of this opinion; and with reference to the argument just referred to, it appears from the resolution consolidating the returns that “the consolidated returns of the duly elected election commissioners or managers, as made to the mayor and general council of this city, on this date, and consolidated and the result declared, shows that” the results were . . “in favor of each issue submitted to the voters in said election, and that the bonds were carried by the required number of votes; and the result is hereby accordingly declared and ordered spread upon the minutes.” This consolidation was prima facie correct, and the burden would then be on the intervenor to show that the result of the election was inaccurate and different from that submitted by the mayor and general council. Sewell v. Tallapoosa, 145 Ga. 19 (2), 22 (88 S. E. 577). The intervenor failed to carry this burden. Properly construed, we think the resolution means that the consolidated 'returns were made by the managers of the election and the mayor and general council of the City of Atlanta.

5. Other grounds of exception are without merit.

Judgment affirmed on the main bill of exceptions; cross-bills dismissed.

All the Justices concur, except Fish, C. J., absent because of siclcness.