Lead Opinion
(After stating the foregoing facts.)
The constitution did not provide the method of ascertaining whether- two thirds of the qualified voters had given their assent to the creation of a new debt. This was left to the legislature. So the legislature passed the act of Oct. 14, 1879 (Acts 1878-9, p. 40), now embraced in the Civil Code (1910), § 443, which declares: “ In determining the question whether or not two thirds of the qualified voters in said county, municipality, or division voted in favor of the issuance of said bonds, the tally-sheets of the last general election held in said county, municipality, or division shall be taken as a correct enumeration of the qualified voters thereof.” But “ whenever the legislature has provided for a registration of voters in a municipality, the number of voters registered thereunder is the true test for ascertaining whether the requisite two-thirds majority of the qualified voters of such municipality has been obtained at an election for which such registration was provided, and in which the assent of such a majority was requisite to empower the municipality to incur an indebted
The pertinent portion of art. 7, sec. 7, par. 1, of the constitution of this State, as amended in 1918, 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 county, munic
The next vital change is the method of determining whether the assent of two thirds of the qualified voters, and a majority of the registered voters, has been secured. Eesort to the tally-sheets of the last general election is no longer the method. A resort to that method would be. wholly ineffective. This amendment to the constitution contemplates registration of the voters. While resort to these tally-sheets was formerly available to ascertain whether two. thirds of the qualified voters favored the creation of a debt, it furnishes no means for ascertaining whether
The next change is “ 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 . . 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.” Thus all special registrations are done away with; and the power of the legislature to provide for them has been withdrawn. Hereafter elections must be held under general registrations applicable to all elections to be held in the given political divisions. Moreover, a municipal election can not be held under a county registration. Floyd County v. State, supra. Such an election must be held under general municipal registration.
So we. reach the conclusion, that, as there was no charter provision or ordinance for registration of the voters in the City of Eorsyth, and in fact no registration of voters within the city, the election for the purpose of issuing its bonds was null and
The second question raised in the cross-bill of exceptions is this: the plaintiffs offered an amendment to their petition, in which they alleged that a portion of section 1 of the act of Aug. 20, 1918, proposing to amend art. 7, sec. 7, par. 1, of the State constitution, is unconstitutional and void, because in conflict with art. 3, sec. '7, par. 8, of the State constitution, which declares that “no law or ordinance shall pass which refers to more than one subject-matter, or contains matter different from what is expressed in the title thereof.” This court has twice held that this provision of the constitution is not applicable to proposals by the legislature to amend the constitution. Cooney v. Foote, 142 Ga. 647 (83 S. E. 537, Ann. Cas. 1916B, 1001); McCall v. Wilkins, 145 Ga. 342 (89 S. E. 219). We have been asked to review and overrule the case of Cooney v. Foote. This would be useless unless McCall v. Wilkins were overruled. Furthermore, we see no reason why these cases should be overruled.
The next point raised in the cross-bill of exceptions is that this amendment was not adopted in accordance with art. 13, sec. 1, par. 1, of the State constitution, which provides for the submission to the people for adoption of proposed amendments to the eon
Judgment reversed on the main Mil of exceptions, and affirmed on the cross-bill.
Dissenting Opinion
dissenting. The statement of facts recites the different stages and the incidents of this litigation, and a review of the record shows that the controlling question- in the case is whether the trial judge adopted the proper method of ascertaining whether such a legal election had been held by the qualified voters of the City of Forsyth, as required the declaration of the result of that election to be enforced by mandamus absolute. It seems that in the election which was held on the 34th day of April, 1933 (there being no dispute that the question of bonds or no bonds was duly advertised and submitted to the voters), 367 votes were cast in favor of the bonds and 100 votes were cast against the bonds. According to the list made at the instance of the city council, there were 550 voters within the City of Forsyth as shown by the registration list of Monroe County, and of this number 46 appeared for one reason or another to be disqualified; and the contention is vigorously pressed that'the 367 votes cast in favor of
The contention of the plaintiffs in error is, that, inasmuch as 267 is not two thirds of the qualified voters of Forsyth as shown by a copy of the registration lists of those voters of Monroe County who reside within the limits of Forsyth, two thirds of the qualified voters of the City of Forsyth, as required by law, had not voted in favor of the bond issue. Even if this argument be valid, if there was any provision of law requiring the registration of voters in municipal elections in the City of Forsyth it is not in point in the present case, for the reason that an examination of the charter of the City of Forsyth discloses that there is no provision for municipal registration in this city.
I dissent from the ruling of the majority, because one of the most substantial achievements resulting from civil liberty is the right of local self-government in the exercise of home rule by subordinate divisions existing within and subordinate to a commonwealth whether State or National. However, I would agree with the result reached by the majority were I convinced, as they are, that the charter of the City of Forsyth and the election held in pursuance thereof are null and void. I dissent because I do not think that it was the purpose of the amendment of 1918 to the constitution to affect vested rights of municipal corporations previously created by the General Assembly of the State, and certainly not to divest them of any rights hitherto enjoyed by any of these creatures of the State, or to place any new burden upon them, without express reference to that subject. As said by Mr. Justice Lumpkin, in Heard v. State, 113 Ga. 444 (39 S. E. 118), the existence of doubt as to the constitutionality of a legislative act
Under the ruling of the majority each municipality will now be compelled to provide for the registration of its voters; and I apprehend the decision of the majority may cause difficulties and confusion not necessary, to be now specifically pointed out. The fact that the amendment of 1918 refers to registered voters does not ex proprio vigore, it seems to me, do more than include within its provisions those municipalities which in 1918 had the authority to provide for municipal, registration. It cannot by mere inference be assumed that the General Assembly and the people, in adopting the amendment of 1918, intended to extend the operation of a law which was intended primarily to prevent municipalities from ordering special registrations to hold elections upon the subject' of bond issues, and to provide that a majority of the voters voting (provided such majority of voters was two thirds of those registered) could carry a bond issue through rather than two thirds as determined by the lists and tally-sheets of the last preceding election, as provided by § 443 of the Code, so as to preclude the issuance of bonds on the part of such municipalities as had no authority to’register voters. Nor does it appear to me that there must be inferred a purpose to repeal the plain provisions of section 443 of the Code, which already provided for all municipalities whose charters contained no provision authorizing or requiring the registration of municipal voters. It seems plain to me that this case ought to be decided in accordance with the pro
I do not agree with the majority, because I maintain that, so far- as municipal elections in the City of Forsyth are concerned, they are unaffected by the constitutional amendment to which we have referred; whatever may be the rule as to municipalities which aré empowered to make provision for the registration of voters in elections held in the municipality. The amendment to paragraph one, section seven, article seven of the constitution, adopted in 1918 (Acts 1918, p. 100), provides that no municipality “shall incur any new debt without the assent of two thirds of the qualified voters thereof voting at an election for that purpose to be held as prescribed by law, provided said two thirds so voting shall be a majority of the registered voters, and provided further that ¿11 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 laws providing for such special registration.” Since the City of Forsyth has no municipal or local registration law nor any charter provision which requires or au-' thorizes the voters of that city to be registered, it is plain that the method of ascertaining whether two thirds of the qualified voters which the law requires have voted in favor of any bond issue affecting that municipality must be determined by section 443 of the Civil Code. Gavin v. Atlanta, 86 Ga. 132 (12 S. E. 262); Farmer v. Thomson, 133 Ga. 101 (65 S. E. 180). As said by Judge Little in Floyd County v. State, 112 Ga. 794-802 (38 S. E. 37): “If no registration law is applicable and no authority to establish one has been conferred on the municipality, and the election for bonds is held, then the question as to whether two thirds of the qualified voters voted in favor of the issuance of the bonds is to be decided by reference to the tally-sheets of the last general election.”
The facts of this case distinguish it from Mays v. City of Jackson, 147 Ga. 556 (94 S. E. 1006), in that in the present case there is no provision of law for the registration of voters in the City
It is clear, then, that the trial judge adopted the correct rule for ascertaining whether or not two thirds of the qualified voters of Forsyth voted in favor of the proposed bond issue, and, since it appeared that only 49 votes were cast in the last general election preceeding the voting upon the issue of bonds, that 261 (even after deducting 46 votes that were challenged) were more than two thirds of the qualified voters of the city; and it is equally plain, since only 100 votes were cast against the issue of bonds, that more than two thirds of those voting in the election of April 24 voted for the proposed issue, even after deducting the 46 votes alleged to have been illegal.
Complaint is made that the judge should have submitted the' case to a jury, inasmuch as there were issues of fact involved. The court refused to pass the case until the next term of court for trial by jury, holding that the issues of fact suggested were immaterial, and that the court could decide the case upon the pleadings alone. The holding of the court as to this matter was not error; for, under the issue as to which the parties agreed, there was only one real issue in the case, and this single issue presented only the question of law which we have considered. In other words, under the material facts as to which there was any
I am authorized by Mr. Presiding Justice Beck to say that hé concurs in the views expressed in this dissent, and in the opinion that the judgment of the lower court should be affirmed.