37 S.E.2d 915 | Ga. | 1946
1. "The instrument contained in Ga. L. 1945, pp. 8 to 89, inclusive, is not an amendment to the Constitution of 1877, but is a completely revised or new Constitution," and is valid. Wheeler v. Board of Trustees of Fargo Consolidated School District,
2. The provision, that no county, municipality, or division shall incur any new debt except for a temporary loan, "without the assent of a majority of the qualified voters of the county, municipality, or other political subdivision voting in an election for that purpose to be held as prescribed by law," as contained in such revised Constitution, requires only that, in order to authorize a proposed bond issue, a majority of those actually voting shall vote in favor thereof.
3. The quoted provision does not require a new statute for the purpose of putting it into effect, since the existing statute (Code, §§ 87-201 to 87-204, inclusive), which provided for bond elections under the former Constitution, remains of force, subject to the changes made by such new constitutional provision, and must be construed and applied in harmony therewith.
Judge James C. Davis of the superior court held himself disqualified, *612 and the case was heard by Judge Frank Guess, of the City Court of Decatur, in pursuance of the constitutional provision contained in the Code, § 2-3301. The case was submitted to him on the verified pleadings. After hearing argument, he entered a judgment, ruling expressly against all of the objections made by the intervenor, and validating all of the bonds as described. To this judgment McKnight excepted. 1. All of the steps taken in reference to these bonds occurred after August 13, 1945, this being the date on which the Governor of Georgia proclaimed as being effective the so-called "single amendment" to the Constitution of 1877, which was submitted to the voters of the State for ratification or rejection in the general election of August 7; and the city commissioners in declaring the result of the bond election undertook to apply the provision relating to the subject as contained in such "amendment." One of the intervenor's objections was that the "amendment" of 1945 never became effective and is wholly void, because it contained numerous amendments embodying distinct and unrelated matters, and its submission to the voters as one amendment was therefore in violation of the provision of the Constitution of 1877, that, "When more than one amendment is submitted at the same time they shall be so submitted as to enable the electors to vote on each amendment separately." Code, § 2-8601. On this hypothesis, it was contended that the validity of the bonds should be determined by the Constitution of 1877, as amended in 1918, under which, if it should be applied, none of the several classes of bonds received the assent of the requisite proportion of the qualified voters of the municipality. Code, § 2-5501.
A similar question as to the validity of the so-called amendment of 1945 was presented in the case of Wheeler v.Board of Trustees of Fargo Consolidated School District, supra; and in that case we held that this instrument, though referred to by its own terms as an "amendment," is really not an amendment to the Constitution of 1877, but is a completely revised or new Constitution, and is valid. *613
We also have in this case substantially the same questions that we had in the Wheeler case, as to disqualification of the members of this court to pass upon the validity of such instrument. We then held that, under the rule of necessity as there discussed, all of the Justices, except Justice Candler, were under an imperative duty to preside, since, unless we did so, no court could be lawfully assembled to decide the case. The same rule applies here, except that, in view of the rulings upon the merits as made in that case, Justice Candler considers it his duty to preside in the instant case, and in this view the other Justices concur.
It may be noted that the so-called amendment of 1945 itself declared that, "If a majority of those voting vote for the amendment revising the Constitution when the results are certified to the Governor, he shall proclaim the amendment revising the Constitution of 1877 as the revised Constitution of Georgia." Ga. L. 1945, p. 89.
For the reasons stated in the Wheeler case, we reaffirm the conclusion there reached as to the validity of such constitution.
2. The intervenor objected further upon the ground that none of the bonds received the necessary vote, even under the terms of the revised Constitution, to wit, "without the assent of a majority of the qualified voters of the county, municipality, or other political subdivision voting in an election for that purpose to be held as prescribed by law." Art. 7, sec. 7, par. 1 (Ga. L. 1945, p. 69). This contention calls for a construction of the quoted clause as applied to the facts.
As we have seen, each of the proposed bond issues was approved by a majority of those who voted, but not by a majority of all of the qualified voters of the municipality; nor did a majority of all of such voters participate in the election, as to any of the proposed issues.
This court has heretofore considered the corresponding provisions of (1) the Constitution of 1868, (2) the original Constitution of 1877, and (3) the Constitution of 1877 as amended in 1918.
The Constitution of 1868 provided that the General Assembly might permit the corporate authorities of any town, or city, to take stock in, or contribute to, any railroad, or work of public improvement, or engage in such work, "after a majority of the qualified voters of such town or city, voting at an election held *614
for the purpose, shall have voted in favor of the same; but not otherwise." Code of 1873, § 5067. In Black v. Cohen,
It thus appears that, under the Constitution of 1868, we had the word "voting," just as we have now, and it was held, in effect, that only a majority of the qualified voters who participated in an election was required.
The original Constitution of 1877 contained the language, "without the assent of two thirds of the qualified voters thereof, at an election for that purpose." Code of 1886, § 5191; Code of 1910, § 6563. In Gavin v. Atlanta,
The court thus compared the Constitution of 1868, making special mention of the words "voting at an election," as contained in that Constitution, and stating also in the same connection that in the Constitution of 1868 the rule laid down was the common-law rule. If the rule was so laid down in the Constitution itself, no mere statute could make a different requirement. See also Mayor c. of Madison v. Wade,
In 1918, the Constitution of 1877 was amended so as to require 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." Code, § 2-5501. In Chapman v. SumnerConsolidated School District,
The framers of the revised Constitution were presumably cognizant of the foregoing provisions of the earlier constitutions, and of the interpretations which this court had placed upon them. Accordingly, when the provision here under consideration is viewed in the light of its background, it seems perfectly clear that it was intended to require only a majority of those actually voting, and not a majority of all the qualified voters of the county or municipality — thus returning to the rule as embodied in the Constitution of 1868, where almost the identical language was used.
Furthermore, similar interpretations have been placed on constitutional provisions containing like verbiage in reference to other elections. "No county site shall be changed, or removed, except by a two-thirds vote of the qualified voters of the county, voting at an election for that purpose, and a two-thirds vote of the General Assembly." Code, § 2-8205. In Wells v.Ragsdale,
That decision was concurred in by all the Justices, and since the language therein construed is so nearly identical with that here under consideration, the decision would appear to be practically controlling upon the question now before us. See alsoFloyd County v. State of Georgia,
Again, the provision of the Constitution of 1877, prescribing the manner in which amendments to that instrument shall be adopted, provided: "If the people shall ratify such amendment or amendments, by a majority of the electors qualified to vote for members of the General Assembly, voting thereon, such amendment or amendments, shall become a part of this Constitution." Code, § 2-8601. In Cartledge v. Augusta,
While an intent to change the existing law is not to be lightly inferred, yet the provision here makes a radical change in the constitutional law, and we think that it plainly means only a majority of the qualified voters who actually vote in the election. As was said in Black v. Cohen,
While the courts of the country are not altogether in harmony on the question here presented, seemingly the weight of authority accords with the conclusion that we have reached. See Munce v.
O'Hara,
3. The third and final objection was, that the provision of the revised Constitution as to incurring debts by a municipality is not self-executing, and that since the General Assembly has passed no enabling act putting this provision into operation, the City of Decatur could not issue these bonds. There is no merit in this contention. The Constitution of 1877 used the words, "at an election for that purpose, to be held as may be prescribed by law," while the language in the present Constitution provides, "in an election for that purpose to be held as prescribed by law." It took an enabling act for the Constitution of 1877.Hudson v. Marietta,
In Lee v. Tucker,
So, in the instant case, we hold that the statute providing for such elections must still be given effect, subject to the change as made by the revised Constitution in reference to the proportion of qualified voters necessary to authorize a bond issue; and that no further enabling act was necessary. See also, in this connection, Hammond v. Clark,
Judgment affirmed. All the Justices concur. *620