42 Ga. App. 563 | Ga. Ct. App. | 1931
1. A petition by a solicitor-general to validate bonds must specifically set forth a strict compliance with the law relative to the service of the notice provided for by the Political Code (1910), § 445, the name of the district or political subdivision of the State seeking to issue the bonds, the amount of the bonds to be issued, for what purpose they are to be issued, what interest they are to bear, how much principal and interest is to be paid annually, and when they are to be fully paid. The petition must show that an election was held by the district for the issuance of the bonds, and it must also specifically appear that the result of the election was prima facie in favor of their issuance. Political Code (1910), § 446; Smith v. Dublin, 113 Ga. 833 (2) (39 S. E. 327); Harrell v. Whigham, 141 Ga. 322 (80 S. E. 1010). It is incumbent upon the petitioner in such a proceeding to make out a prima facie case by proving each of the substantial and material allegations set
2. In the instant case the election for bonds was called by the board of county commissioners of Richmond county, pursuant to an act of the General Assembly approved July 22, 1929 (Ga. L. 1929, p. 700), and at the election there was submitted to the voters of Richmond county the question of the issuance or non-issuance by the board of education of Richmond county of the bonds provided for by the act mentioned. The petition for validation shows a compliance with the provisions of the law set forth in the preceding division of the syllabus, and meets the requirements there stated; that the total number of voters qualified to vote in the election was 9,690; that 6,049 votes were cast in'the election, of which number 5,786 were in favor of the issuance of the bonds and 263 were against the issuance of the bonds. The proof submitted by the petitioner substantiated the allegations of the petition, and the court did not err in overruling the motion of the intervenors to refuse to validate the bonds, but properly ruled that a pr^ma facie case had been made, and that the burden was cast upon .the intervenors to set up and establish any other fact that would render the election invalid.
3. The act of the General Assembly approved August 21, 1922 (Ga. L. 1922, p. 97; Michie’s Code of 1926, § 138 (8) et seq.), known as the Australian ballot law, requires the ordinary, for each election, general or special, to provide at each polling place “a private room or rooms, a booth or booths, or an enclosure or enclosures, with such compartments therein as may be necessary to accommodate the persons qualified to vote at such polling place.” This provision of the law does not constitute each room, booth, or enclosure provided at a polling place a separate voting precinct, so as to require three superintendents for each such voting booth or enclosure; and where at a city voting precinct the list of registered voters was divided according to the; alphabet, and voters admitted to the booths designated by the letters of the alphabet assigned to it, a separate ballot-box being used for each such booth, all the ballot-boxes, and all the managers and clerks engaged in conduct
4. Where in such a case it appears from the evidence introduced in a contest over the validation of bonds voted upon in such election" that at each city voting precinct there were at least three superintendents who were eligible, by being freeholders or justices of the peace, to hold the election, it can not be set aside as being void for lack of proper managers, although other persons, who were not freeholders or justices of the peace nor an ordinary, may also have acted as managers at such election. See, in this connection, Collins v. Huff, 63 Ga. 207; Slate v. Mayor &c. of Blue Ridge, 113 Ga. 646 (38 S. E. 977).
5. Where a petition to validate bonds to be issued by the county board of education of Richmond county, under an'act of the General Assembly approved July 22, 1929 (Ga. L. 1929, p. 700), was filed by the solicitor-general, it was not necessary that the answer to such petition by the board of education, required by the Civil Code (1910), § 456, be ^worn to by each member of the board, but the affidavit of one member of the board was sufficient. Hutchinson v. Lowndes County, 131 Ga. 637 (62 S. E. 1048). The motion to dismiss the answer, on the ground that the member of the board of education by whose affidavit it was verified was disqualified to act as such board member, by reason of his having accepted an appointment as supervisor of the census, amounted to a mere speaking demurrer, and was properly overruled.
6. Likewise, the motion to dismiss the answer filed by the board of county commissioners which called the election, on the ground that the answer was verified by only one member of the board, was properly overruled.
7. The court properly rejected two letters alleged to have been written by persons who participated in the management of the election, since such evidence amounted to mere hearsay. Moreover, the author of one of the letters was introduced as a witness, and testified substantially to the facts set forth by the letter; and the other letter was anonymous, and its execution was not proved except by testimony as to a declaration made by the reputed author.
9. It is the general rule that when the result of an election in any precinct has been shown to be so tainted with fraud that the truth can not be deducible therefrom, the entire poll should be rejected (McCrary on Elections, p. 569); still, on the other hand, if the true result can be ascertained by eliminating the illegal votes, the election will be upheld. 30 C. J. 183, § 334. It is further a well-recognized rule that a fraud committed by the officers holding an election, or with their knowledge and connivance, stands upon a different footing from fraud committed by other persons, and that in such former case a wilful and deliberate fraud upon the ballot-box, perpetrated by the officers of the election, even though not sufficient to affect the result, may destroy the integrity of the returns made by the managers, so as to deprive them of their standing as prima facie proof of the result of the election, and so as to require additional evidence to establish the result. McCrary on Elections, pp. 574, 575. In the instant case there was proof of circumstances which might reasonably tend to indicate that ballots in favor of the issue of bonds were deposited in the ballot-boxes by the managers in the names of persons who did not appear at the polls and vote, but there was no direct proof of such wrongful and fraudulent practices on the part of the election managers themselves as would demand a finding that the election officials had themselves been guilty of fraud on their own part such as would impeach their returns and leave the proponents of the issue of
Judgment affirmed,.