186 Ga. 529 | Ga. | 1938
Lead Opinion
It is contended by counsel for the defendants that the decisions of this court in Tatum v. Langley, 179 Ga. 731 (177 S. E. 243), and Lilly v. Miller, 181 Ga. 624 (183 S. E. 790), require a different conclusion from the one at which we have arrived. The contention is that those two decisions ruled that paragraphs 2 and 3 of section 1 of article 2 of the constitution apply to municipal electors and municipal elections, and are all-inclusive of the qualifications of voters in such elections; and therefore that the General Assembly was impotent to impose any additional qualifications on persons seeking to vote in municipal elections. Those two paragraphs read as follows: (2) “Every . . citizen of this State who is a citizen of the United States, twenty-one years old or upwards, not laboring under any of the disabilities named in this article, and possessing the qualifications provided by it, shall be an elector and entitled to register and vote at any election by the people.” (3) “To entitle a person to register and vote at any election by the people, he shall have resided in the State one year next preceding the election, and in the county in which he offers to vote six months next preceding the election, and shall have paid all poll taxes that he may have had an opportunity of paying agreeably to law.” In Jones v. Darby, 174 Ga. 71 (161 S. E. 835), it was held that one who had failed to pay taxes due by him to a municipality, the same having become due and payable six months before the election, was ineligible to hold an office in the county in which the municipality was located. The only question was whether the language “all taxes,” in art. 2, see. 1, par. 3, of the constitution, should be held to include municipal taxes. In Tatum v. Langley, supra, it was held that one who had not paid a street-tax in accordance with an ordinance of the municipality requiring payment of such tax as a prerequisite to voting in a municipal election was nevertheless entitled to vote in such election, he having paid his poll-tax as required by the constitution. No other question was presented, and the decision must be construed accordingly.
If the constitution in the paragraphs herein quoted has laid down the exclusive qualifications for voters “at any election by the people,” and if this includes municipal elections, then the legislature can not require that before a citizen, who is otherwise qualified to vote, can cast his ballot in a municipal election in the City of Atlanta, he must reside in Atlanta. Every legislature that has met since the adoption of the constitution has granted
There is no requirement in our constitution that there be uniformity in the charters of our municipalities. It was perhaps thought that certain communities need charters differing in marked respects from others, and that the lawmakers should be left free to give to each town and city a separate act of incorporation. In so far as the powers and restrictions contained therein run counter to no constitutional provision, and no general law, they are valid.
The legislature had the power, in granting this charter, to permit persons residing without the municipality but owning real estate therein, but residing in the County of Chatham, to vote and hold office in such municipality, if otherwise qualified under the constitution. State v. Swearingen, supra; Beazley v. Lunceford, 178 Ga. 683 (173 S. E. 852); Peacock v. Larsen, 180 Ga. 444 (178 S. E. 922). The case of Avery v. Bower, 170 Ga. 202, 209 (152 S. E. 239), referred only to a county election, and therefore is distinguishable. The registry laws relating to general county elections do not apply to municipal elections. Floyd County v. State, 112 Ga. 794, 798 (38 S. E. 37); State v. Blue Ridge, 113 Ga. 646 (2) (38 S. E. 977); Goolsby v. Stephens, 155 Ga. 529, 538 (117 S. E. 439). Courts can exercise no legislative powers. In answer to the suggestion that it is undemocratic to refuse the ballot in municipal elections in Savannah Beach to those who own therein no land, we can only say 'that such suggestion should be addressed to the General Assembly, not to the judicial branch of the government. The principle of the separation of powers embodied in our bill of rights (Constitution, art. 1, sec. 1, par. 23; Code, § 2-123), “The legislative, judicial, and executive powers shall forever remain • separate and distinct, and nó person dis
Judgment reversed on the main lili of exceptions, and affirmed on the cross-lill.
Rehearing
ON MOTION EOR REHEARING. ■
In headnote 8 of the opinion first rendered we ruled that that portion of paragraph 13 of the petition which stated that the forty-eight persons who offered to vote would have voted for the old board of councilmen if they had been permitted to vote was not demurrable on the ground that it stated a conclusion. On a reexamination of the record, it was discovered that plaintiff in error in the cross-bill did not assign error upon the overruling of the demurrer as to this matter. The ruling has therefore been stricken from the opinion as originally rendered, for the reason that this court should rule only on such assignments of error as are presented by the complaining party. The motion for a rehearing merely emphasizes and enlarges upon the contentions urged upon the original hearing, all of which were carefully considered by the court. We have again considered all of these questions, but find no sufficient reason for changing our opinion. We deem it unnecessary to add to what has heretofore been said thereon.