160 Ga. 217 | Ga. | 1925
(After stating the foregoing facts.) The legislature in 1923 (Acts 1923, p. 837), passed an act limiting the rate of taxation in the City of Waycross for. school purposes at ten mills
We are of the opinion that the city commission was without authority to permit a recount of the ballots cast at said election and to declare the result to be different from .what it appeared to be on the face of the returns. The charter of the City of Way-cross (Acts 1909, p. 1456, sec. 9), declares: “that the elections for mayor and aldermen of said city, as well as any and all other municipal elections held in said city, sliall be held under the same rules and regulations as nearly as practicable as elections for members of the General Assembly. The mayor and aldermen of said city shall have the right and power to appoint for each election precinct in said city any three freeholders, or any two freeholders and a justice of the peace, who are residents of the said city, and not candidates or directly interested in the result thereof, to conduct such elections. . . Said managers shall hold such elections under the usual rules and regulations governing such matters, and shall count the votes; and when the votes are all counted out, the managers at each voting precinct shall sign a certificate, stating the number of votes each person, or each side of the question, voted for, as the case may be, received at such precinct, and each list of voters and each tally-sheet at each precinct must likewise be signed by the managers at such precinct. Said certificate together with one tally-sheet and one list of voters from each precinct shall be securely sealed in an envelope, one for each precinct, with the names of the managers endorsed thereon, respectively, and then delivered to the clerk of the city council, who shall keep same safely and return them to the next meeting (either called or regular) of the mayor and aldermen, who shall receive and open said returns and declare the result of the election by formal resolution, which shall be entered upon the minutes of the city council. One list of voters, one tally-sheet, and all the ballots at each pre
We are of the opinion that under the charter of the City of Waycross, providing how elections shall be held, the ballots in the instant case should-have been sent by the managers of the election to the ordinary of the County of Ware; and that the city commission had no authority to permit or order a recount of the ballots, and that their duty was, at their first regular meeting after the election, to open the returns which the managers of the special election should make to the city commission, declare the result, and record the same in the book of their proceedings; and that the city commission exceeded their authority when they permitted a recount of the ballots. The fact that the recount may have been fair and honestly made does not answer the proposition that they had no authority to permit it to be done at all. To allow such a procedure without charter authority would be to open the door to frauds hereafter, if such a precedent is established. But it is argued that the recount was made by the election managers, and that they had the right to make the recount. The record shows that the recount was not made entirely by the managers of the election, but by the managers and others who were called in to aid in the recount, the latter not being sworn as managers, or in any other way. Besides, we are of the opinion that when the election managers had certified the result of the election and made their returns to the city commission, their duty was at an end and functus officio. In 20 C. J. 197, § 249, it is said: “Where election officers have completed the count, executed and delivered their returns, their powers and duties are at an end; they are without power to withdraw the returns, add to, change, or alter them, or to make a ngw return.” And see 9 B. C. L. 1110, §§ 114, 115.
It is insisted that while it is alleged in the petition that two thirds of those voting in the election did not vote for increased taxation, yet there is no evidence in the case to support that allegation, and that the evidence shows that the number of votes cast in the election for and against increased taxation was correctly shown by the recount. The reply to this is that the agreed statement of facts shows that on the face of the returns the vote for increased taxation was 1257, and the vote against increased taxation was 636, and that the vote in favor of increased taxation was less than two thirds of the total vote cast. It will not do to say that the evidence on' the recount is the evidence that must control.
Judgment reversed.