5 S.E.2d 661 | Ga. | 1939
1. An amendment to the constitution of this State, duly proposed by the General Assembly and published for sixty days before the election in one for more papers in each congressional district, will not be declared by the courts to have been illegally submitted to the people because a brief and concise summary thereof was not published in a newspaper carrying the sheriff's advertisements in a certain county.
2. Nor will it be held that such amendment was not legally submitted to the people because, on the day on which it was submitted, no election was held in three named counties.
3. The courts of this State are not clothed with the power to hear and determine a contest of an election on the ratification or rejection of an amendment to the constitution as proposed by the General Assembly.
That paragraph of the constitution dealing with amendments itself provides the method of giving notice thereof to the voters. After the required number of each branch of the General Assembly have voted to submit the proposal to amend, and the aye and nay votes have been entered on the journals, the proposed amendment shall be submitted to the people. It is required that the General Assembly make provision for its publication in one or more newspapers in each congressional district. That much discretion is given to the legislature, — to decide whether to publish the amendment in more than one newspaper in each congressional district. The General Assembly must make provision for its appearance in one paper in each district. The constitution also charges the legislature with making provision for its publication, but does not declare that that body shall direct that the Governor do this, the secretary of the Senate, or clerk of the House, or any other official of the State. In its submission of this amendment, the General Assembly did provide that the Governor should have the amendment published in one newspaper in each congressional district of the State, and the petition in the instant case does not allege that that was not done. The amendment having been published *269
as required by the constitution, the legality of its submission can not be affected by the fact that a brief and concise summary of it was not published in the one newspaper in this State in which the sheriff's advertisements of the County of Richmond are carried, notwithstanding the provisions of the act approved March 24, 1939, which gave direction that this be done. The requirement of the act that a brief and concise summary of the proposed amendment be published in every newspaper in Georgia carrying the sheriff's advertisements is not the exercise of discretion on the part of the General Assembly as to whether the amendment itself be published in more than one newspaper in each congressional district of the State. The constitution itself having declared what shall be done when an amendment is proposed, it follows that when these requirements are complied with, the submission is legal. Indeed, a substantial compliance therewith as to publication will suffice. Hammond v. Clark,
It is the right of a people to alter their form of government, or to change the constitution. If this is done by amendment, their chosen representatives in the General Assembly initiate, and the body of the electorate either approve or reject. It was the evident purpose of the framers of the constitution to provide a direct and simple plan for amending it. They specified the steps to be taken, and who should take them. In acting on a proposal to amend the constitution, the General Assembly is not legislating at all, nor can they by legislation add to, take from, or alter the mode of its submission to the people. If the amendment be proposed in the manner pointed out in the constitution, the General Assembly have no right to throw requirements around it in addition to those specified in the constitution. In an opinion *270 rendered to Governor Northen on July 22, 1892, and published in vol. 1 of Jones' Compilation of the Opinions of the Attorneys General, 30, 34-5, Mr. Attorney-General Little said: "The constitution itself provides the only methods by which that instrument may be amended, and these are two: 1st. By convention of the people. 2d. An amendment may be proposed in the Senate or House; if the same shall be agreed to by two thirds of the members elected to each of the two houses, such proposed amendment shall be entered on their journal, with the ayes and nays taken thereon. The General Assembly shall cause amendments to be published in one or more newspapers in each congressional district for two months previous to the time of holding the next general election, and provide for submission of such proposed amendments at such election. If ratified by a majority of the electors then voting, the same shall become a part of the constitution. When more than one amendment is submitted at the same time, they shall be so submitted as to enable electors to vote on each amendment separately. It is not necessary under these terms of the constitution that the amendment shall be in any particular form. It is not necessary that it shall be by a bill or resolution. It is not necessary that it shall be read three times on three separate days in each or either house. It is not necessary that it shall be sent to the Governor for his approval. On the contrary, the proposed amendment has none of the force and validity of a law. The approval or disapproval by the Executive would not affect it. It is a simple proposition made by the two houses to amend the constitution; but while as such a proposition it has no force and effect, it is the method prescribed by which, the legislature and the people concurring, the constitution is changed. The validity of the amendment is given by the voters." These views are in accord with those expressed in an opinion given in response to a request from Governor Smith, by Attorney General Hart, on August 18, 1908, and published in vol. 2 of Jones' Compilation, 87 et seq.
When the proposed amendment was advertised in accordance with the terms of the constitution relating thereto, its validity can not be successfully attacked on the ground that some additional requirement as to publication, placed by the General Assembly, had not strictly been complied with. An act of the General *271 Assembly containing some additional provision as to publication will at the most be treated as directory only. Counsel for the plaintiffs argue that the expression, in that paragraph of the constitution relating to the submission of an amendment, to wit, that the General Assembly "shall also provide for a submission of such proposed amendment or amendments to the people at said next general election," is a grant by the constitution to the General Assembly of a discretion as to what publication shall be had. The only discretion left with the General Assembly as to publication was as to whether they would provide for the publication of the amendment itself in more than one newspaper in each congressional district. The clause which provides that the General Assembly shall provide for the submission of such amendment is in addition to the clause dealing with publication. "And the General Assembly shall cause such amendment or amendments to be published in one or more newspapers in each congressional district, for two months previous to the time of holding the next general election, andshall also provide for a submission of such proposed amendmentor amendments to the people at said next general election," etc. (Italics ours.) These duties our organic law places on the General Assembly, and the italicized words merely make certain that it is the General Assembly's responsibility to see to it that any proposed amendment is submitted to the people at the next general election, just as it was made their duty, and theirs alone, to propose the amendment to the people.
2. It is also urged by the plaintiffs that the proposed amendment has not become a part of the constitution, because it was not legally submitted to the people, nor was it properly voted on by all the people of the State, for that no election at all was held in Morgan, Marion, and Hart Counties; that in these three counties there were approximately 4285 votes; and as to each county the allegation is that "had said election been submitted to the people in said county, they would have voted against such amendment." The petition states that the entire State vote for the amendment was 17,059, and against it 10,230. To whose fault, if it was the fault of any one, can be attributed the failure to hold an election in the three counties named, does not appear. It would be a monstrous proposition to hold that the failure of three counties out of one hundred and fifty-nine to open the polls *272 on the day when a constitutional amendment is being voted upon would affect the validity of its submission to the people or of the election itself; or, even in the face of an allegation that they would have voted against the amendment, to count the entire number of registered voters in the three counties as voting against it. The tabulation of the result must be based on the number of ballots actually cast throughout the State who vote either for or against it.
3. The third ground of attack relates to charges of fraud in the election held in Richmond and Chatham Counties. With respect to the latter county, the allegations of fraud are general, and wholly insufficient. Cole v. McClendon,
The title of the act approved March 24, 1939 (Ga. L. 1939, p. 305) is, "An act to carry into effect article 13, section 1, paragraph 1, of the constitution of Georgia, by providing for the publication of any proposed amendment to the constitution of this State, for submission of the same to the people, and for ascertaining and declaring the result of the election thereon; and for other purposes." We have here an enactment providing (a) that the returns of the election shall be certified to the secretary of State, (b) that he shall canvass the same, (c) ascertain the result of such election, and (d) certify the same to the Governor, (e) who shall, if the certificate of the Secretary of State shows that a majority voted in favor of ratification so declare by his proclamation to be issued within ten days, etc. The legislature has not conferred on the courts the power to hear and determine an election contest of this character, and the courts have no such inherent power. This is not a case of property or person of the citizen imperiled by a pretended election which was really unauthorized by law. Questions as to the qualification of voters, whether their votes were illegal or not, are necessarily political in character.Avery v. Hale,
Judgment affirmed. All the Justices concur.
BELL, Justice, concurs in the judgment only. *275