90 Ga. 817 | Ga. | 1893
1. The charter of the city of Dawson, as amended by the act of September 1st, 1891 (Acts of 1890-1, Yol. II, p. 526), provides that “ all male citizens of this State residing within the corporate limits of said city, who shall be entitled to vote for members of the General Assembly of this State, and who have resided within said city for at least thirty days prior ” thereto, shall be entitled to vote in all elections for municipal officers held in that city. By an act approved September 29th, 1887 (Acts of 1886-7, p. 738), “ providing for the registration of qualified voters in Terrell county” (in which county the city of Dawson is situated), “ the tax receiver of said county, during the year 1888, and biennially thereafter, or during each year as elections are held for Governor, members of the General Assembly, members of Congress and presidential electors,” was directed to keep a registration book, in which all persons otherwise qualified were required to have their names duly entered, in order to be entitled to vote at certain elections in that county. Construing the charter of the city in connection with this act, the managers at the last municipal election held in the city of Dawson were of the opinion that to have the right to vote at that election it was necessary to have previously registered with the tax receiver; and disregarding a registration list which had
The issue thus presented is not a new one. In Kaigler v. Roberts, 89 Ga. 476, 15 S. E. Rep. 542, the proper construction to be placed upon the local registration law for Terrell county was one of the questions before this court for determination, and it was expressly ruled that the act of September 29,1887, had no application whatever to the election upon the question of issuing bonds to build a court-house, which was then under consideration, but applied only to elections for the officers specifically designated in that act. This decision we are now prepared to affirm and sanction.
That the amended charter of Dawson requires, as one of the essential qualifications of an elector, that he “shall be entitled to vote for members of the General Assembly,” presents no sufficient reason for holding that the act of 1887 applies to the case at bar. True, that act bears date prior to the act of September 1,1891, amending the city’s charter; but when the purpose for which the later act was passed is considered, it is manifest that the legislature neither contemplated, nor had the slightest reference to, the then existing local registration law for Terrell county. The only objects of the amending act were to increase the number and change the terms of aldermen, provide compensation for the city’s officers, and, without regard to the question of registration, declare who should be considered as qualified to vote in elections held for municipal officers. Indeed, not the slightest allusion is made to the subject of registration,
2. The petition in this case was brought by "W. H. Davis and Vm. H. Bishop, describing themselves as “citizens of the city of Dawson, said State, and taxpayers therein.” In passing upon their right to prosecute the present action, two questions arise : (1) whether an action will lie at the instance of mere citizens and tax-payers to inquire into the title of one assuming to hold a public office and exercising its functions; and (2) if such right does exist, what is the proper remedy to pursue to eject one alleged to be unlawfully usurping such powers? At common law, the mode of testing
Although, as already stated, petitioners bring their action in the capacity of citizens and tax-payers, the allegations of their, petition disclose the fact that each was a defeated candidate for alderman in the city election. In the argument here it was urged that, this being true, petitioners should have contested the election under the provisions of section 1838 of the code, as amended by the act of September 21, 1883; and having failed to pursue their proper remedy within the time prescribed by law, they cannot now in any manner be heard to question the right of their successful opponents to hold the offices in question. This contention was made under an evident misapprehension of the law as applied to the peculiar facts presented. It is conceded by petitioners that their opponents received a majority of the lawful votes actually cast at the election. They do not assert that they themselves were duly elected, but by reason of the improper conduct on the part of the managers in rejecting the ballots of a large number of electors fully qualified to vote, the election utterly failed in its purpose, and neither the present incumbents in office, nor any other of the candidates, could legally be declared elected. This position is not only entirely logical, but is in perfect accord with the facts alleged to exist. Had they chosen in their petition to proceed in the character of defeated candidates, we think they would have had the right to do so. Indeed, under the circumstances disclosed, the fact that they were defeated candidates should give them an interest independent of and even superior to that which, as citizens and tax-payers, they undoubtedly possess. They show by their allegations that if the managers of the election had not im
Had the petitioners proceeded as defeated candidates, and in that character only, to set the election aside, they would not, of course, have been permitted to allege any facts tending to show that-the election, as a whole, was illegal or void. In Hardin v. Colquitt, Governor, 63 Ga. 588, the relator brought his proceeding under section 3203 of the code as a defeated candidate “ claiming the office,” and attacked the election not only because of votes unlawfully cast, but upon grounds showing that the election was illegal in its inception and utterly void. Accordingly, it was held that, having shown by his petition that his only claim to office was by virtue of an election which he himself alleged was illegal and entirely without authority of law, he could not, in the capacity of claimant, successfully dispute the title of the incumbent .then in office. He neither alleged himself to be “ a resident of the district,” nor showed “ any interest in the controversy otherwise than as a claimant of the office.” Had he done so, the court say his right of action would have been complete, and his alleged claim to the office might be regarded as mere surplusage. Prom this decision, it would also seem clear that the mere fact that the petitioners in the present case were defeated candidates, would have .presented no obstacle to their proceeding, in their capacity as citizens and tax-payers, to have the election vacated on the grounds alleged. This view is well supported. “All that the court requires, in such instance, is to be satisfied that -the relator is of sufficient responsibility, is acting in
3. Although we think the-allegations made by petitioners present a case, in which there would be merit had they adopted the appropriate remedy, none of the relief prayed in their equitable petition can be accorded them in the present action. As shown in the preceding division of this opinion, their proper remedy is by quo toarranto proceedings under section 3203 of the code, either in the capacity of citizens and tax-payers, or as defeated candidates interested in the offices in question. Courts of equity have been loath to interfere in politics, and have invariably declined to do so where any other remedy is open to those seeking to redress supposed public wrongs of a political nature. Nor can the present petition be entertained under the uniform procedure act of 1887, providing that in the trial of civil
It follows that the court below properly denied the injunction and other relief prayed for.
Judgment affirmed.