23 S.E.2d 668 | Ga. | 1942
1. In this quo warranto proceeding involving the right of an ordinary to hold office, the court did not err in directing a finding for the incumbent, on the ground of attack that the special election to fill such vacancy was void because the county registrars had failed to purge the registration lists of persons who had not paid their poll-taxes for the preceding year, and because other persons, whose names were not on the registration lists on account of failure to pay poll-taxes in previous years, but who "might" have paid such taxes before the special election, were not allowed to vote, where lists were furnished by the registrars in substantial conformity to the statutes, and where there was no showing, under the Code, § 34-3101, that the alleged acts or omissions of the registrars caused the result of the election to be different. *91
2. On the other ground of attack, that the incumbent was disqualified to hold the office, because of non-payment of poll-taxes, the finding in his favor was authorized by the evidence.
3. Under the preceding ruling with regard to the registration lists, any illegally admitted testimony as to agreements by the registrars with both parties in the case before the election, that the lists as prepared could be used, could not have been prejudicial to the petitioner.
4. Under the pleadings and testimony, the exclusion from evidence of entries on the general execution docket as to the issuance of a personal property and poll-tax execution against the incumbent before his election, on the objection that the execution itself had not been accounted for, was harmless.
5. The exception to the exclusion of testimony offered for the purpose of showing that the incumbent had not returned or paid certain taxes is without merit, since obviously this testimony did not support such a contention, and if it had been admitted it would have been more harmful than beneficial to the petitioner.
On the call of any special election, the county registrars are required "to furnish to the managers of said special election two lists, one composed of the names of voters entitled to vote by reason of their registration for the last general election, and the other made up of the names of those entitled to vote by their subsequent registration as hereinbefore provided for, . . and no one shall be entitled to vote . . in said special election . . unless his name is upon one of the lists furnished by the registrars." The registrars are also required to "purge the list of registered voters prepared for the last general election of any names subsequently disqualified by failure to pay poll-taxes becoming due subsequent to the last general election;" and also to purge the list "of all persons who will not be qualified to vote at said election in the same manner as preparing and purging the registration list for the general election." § 34-407 and preceding sections.
Notwithstanding these statutory requirements, § 34-3101 provides that "No election shall be defeated for non-compliance with the requirements of the law, if held at the proper time and place by persons qualified to hold it, unless it is shown that, by such non-compliance, the result is different from what it would have been had there been proper compliance." Although the statute last quoted has particular reference to mere "irregularities in the conduct of elections in matters which are merely directory," rather than "to the absence of a proper registration list" of voters, so that a total failure by county registrars to furnish the lists required by the act of 1911 as amended (§§ 34-401 to 34-407, inclusive) will invalidate an election, without regard to whether such failure is shown to affect the result of the election (Price v. Hodges,
Under the controlling Coleman decision, the special election for ordinary, on March 3, 1942, was not invalidated on the grounds assigned by the contesting petitioner, where he failed to show that the result would have been different; and where the undisputed evidence showed that the county registrars, in at least substantial conformity with the statutes, furnished the two lists as required — one the regular registration list of voters at the last general election in June, 1941, and the other a supplementary list, dated February 19, 1942, containing names of additional persons qualified to that date. The rule announced would hold true, even though the contentions of the petitioner as to the required time of *94
payment of 1941 poll-taxes, and as to the exclusion or inclusion of persons, by purge or amendment of the registration lists, on account of non-payment or payment of poll-taxes, be taken as correct; and even though the lists were not purged of those who had not paid their 1941 poll-taxes due December 20, and "might"
not have contained the names of additional persons who "might"
have paid poll-taxes for previous years at some time after the preparation of the registration list for the June, 1941, general election, for which they had previously been ineligible to vote by failure to pay such taxes within the required six months before that general election. Especially is there no merit in the first two grounds of attack, since it was neither alleged nor proved even that the name of any disqualified person in fact appeared on the lists as furnished; nor that any person, entitled to vote by a payment of poll-taxes after the lists were prepared, even if otherwise entitled to vote, was in fact precluded from voting by not being on the lists as furnished, on which he was in fact entitled to be placed by a previous registration and a compliance with other statutory requirements. See, in this connection, Terrell v. Forest Park Consolidated SchoolDistrict,
The preceding holdings render it unnecessary to determine the particular questions raised, as to the levy and time of payment on December 20 of poll-taxes (see Code, §§ 92-108, 2-5004, 92-5001, 92-5102; Sims v. Kennedy,
2. Under the constitution, article 11, section 2, paragraph 1, no person is eligible to hold office as a county officer unless he "is a qualified voter." Code, § 2-8301. An ordinary, being a county officer within the meaning of this requirement, is not eligible to office unless he is a "qualified voter." Lee v.Byrd,
3. Exceptions are taken to the admission of testimony to the effect that the petitioner while a candidate and his opponent, before the election for ordinary, both agreed to the use by the registrars of the registration lists of voters as actually made up, on the grounds of objection, that the officials were required to observe the law; that any contrary agreement by the candidates was illegal; that in so far as it might have been sought by this evidence to show an estoppel against the petitioner, the incumbent did not plead such an estoppel; and that in no event would an estoppel or waiver avail as to such a matter of public policy. Since, under the rulings in the first division of this opinion, a finding for the incumbent was demanded as to the grounds of attack on the alleged failure of the registrars to purge or furnish proper registration lists — without regard to any question of waiver or estoppel under this testimony, its admission, whether or not erroneous, was in any event harmless to the petitioner.
4. There is no merit in the exception to the exclusion from evidence of entries on the general execution docket kept by the *96 clerk of the superior court, showing that an execution for unpaid personal property and poll-taxes had been issued against the respondent on December 20, 1929, on the objection that the original execution had not been accounted for. As to the respondent's failure to pay the 1930 and 1932 tax executions, the petitioner introduced the executions themselves. It is unnecessary to decide whether or not, under the best evidence or primary and secondary evidence rules (Code, §§ 38-203, 38-204), the entries from the general execution docket were admissible to prove the issuance of the 1929 tax execution in the absence of an accounting for the execution itself, since the exclusion of this evidence could not have been prejudicial. This is true since the respondent, both in his testimony and in his pleading, admitted such issuance, and only contended and testified that he had paid the three executions.
5. In a final exception, to the exclusion of testimony by the respondent, sought to be elicited for the petitioner on cross-examination for the purpose of showing that the respondent was a tax defaulter in that he had failed to return property for taxation and pay taxes thereon, the testimony excluded on objection that it was irrelevant was as follows: "Q. You decided that it wasn't necessary to return that property? A. I am a law-abiding citizen, or try to be. Q. You failed to pay taxes on the property you owned? A. I paid taxes on what property Iowned." Since obviously this testimony, if admitted, would have been more harmful than beneficial to the petitioner, its exclusion, regardless of the question of admissibility, shows no reversible error.
Judgment affirmed. All the Justices concur.