Stiles v. Earnest
252 Ga. 260
Ga.
1984
Check Treatment

STILES v. EARNEST

40544

Supreme Court of Georgia

February 28, 1984

Rehearing Denied March 14, 1984

252 Ga. 260

dеfendant insurance company “recognized immediate coverage.” I would reverse the grant of summary judgment in favor of the insurance company on the ground that it failed to show all facts necessary to establish its right to summary judgment, namely that it failed to show that its practice was to date life insuranсe policies as of the date they are issued and delivered (as the receipt says). If the practice of the insurance company is, аs its agents suggest, to back date life insurance policies to the date of the application, thereby making the assurances of its agents to their applicants “speak the truth” where the applicants are still alive, and thereby making the next premiums due earlier, I would allow recovery in this аnd similar cases.

My reason for allowing recovery in such cases is shown by the following hypothetical: Applicant applies for insurance and рays the first monthly premium on the 10th day of the month. The policy actually is issued on the 20th day of the month but is dated the 10th to coincide with the date of the application. If applicant is alive, the policy is delivered on the 25th day of the month and applicant has been insured for 15 days and owes the next monthly premium in 15 days. But, if applicant has since died, the policy cannot be delivered to applicant and there has been no insurance. Thus, the insurance company, by the practice described above, if that is its practice, receives one-half the monthly premium without risk. Under such circumstances I would allow recovery in an action for specific performance.

In the case before us, the insurance company movеd for summary judgment but failed to negative the possibility suggested by its agents that its practice is to date policies as of the date of the application. I, therefore, would reverse the grant of summary judgment.

I am authorized to state that Justice Smith and Justice Weltner join in this dissent.

WELTNER, Justice.

This is an election contest challenging the result of a referendum held in Seminole County, Georgia, which presented to the voters an opportunity to provide for the ‍‌​‌‌​‌‌​​​​‌​​​​‌​​​‌​‌‌‌​‌​‌‌​‌‌​​‌​​‌​​‌‌‌​​​‌‍election of members of the Seminole County School Board, as opposed to the present system of appointment by successive grand juries. The measure failed by 17 votes; proponents of popular election brought suit; and the trial court affirmed the result of the referendum.

The complaint alleges, inter alia, that election officiаls allowed certain citizens, none of whom were election officials, to “check off” voters from a voting list, in some instances within 250 feet of the polling places.

These persons were employees of the Seminole County Board of Education, including the principal of the high school, his secretary, a school counselor, a vocational supervisor and others — all of whom testified that they visited various polling places during the time of election, and checked off voters from the voting lists. Some of them were required by election officials to move further than 250 feet from the рolls; others were allowed to remain within that distance, fully visible to voters entering the polls.

OCGA § 21-2-414 (a) (Code Ann. § 34-1307) provides: “No person shall solicit votes in any manner or by any means or method, nor shall any person distribute any campaign literature, newspaper, booklet, pamphlet, card, sign, or any other written or рrinted matter of any kind on any primary or election day within 250 feet of any polling place. . . .”

OCGA § 21-2-408 (a) (Code Ann. § 34-1310) sanctions the appointment of official poll wаtchers, although they are prohibited from interfering “... with the conduct of the election” and are “... prohibited ‍‌​‌‌​‌‌​​​​‌​​​​‌​​​‌​‌‌‌​‌​‌‌​‌‌​​‌​​‌​​‌‌‌​​​‌‍from talking to voters, checking electоrs’ lists, or participating in any other form of campaigning while they are behind the enclosed space.” OCGA § 21-2-408 (c) (Code Ann. § 34-1310). See also 1982 Op. Atty. Gen. No. 82-30, for the proposition that checking off of voters constitutes campaigning within the meaning of the statute.

1. We are called upon to decide whether the Seminоle County School Board referendum is a “primary” or an “election” so that members of the public are barred from campaigning, or checking voters’ lists within 250 feet of the polls. See OCGA § 21-2-414 (a) (Code Ann. § 34-1307), OCGA § 21-3-321 (a) (Code Ann. § 34A-1206), OCGA § 21-2-408 (c) (Code Ann. § 34-1310).

OCGA § 21-2-2 (Code Ann. § 34-103) provides: “As used in this chapter, the term: ... (4) ‘Election’ means any general or special election and shall not inсlude a primary.” Sub-paragraph (28) of that section provides: ” ‘Special election’ means an election that arises from some exigenсy or special need outside the usual routine.” Accordingly, we interpret this code section as to encompass the referendum here at issue.

2. We agree with the opinion of the Attorney General, supra, the final sentence of which is as follows: “However, it would not be permissible for anyonе, including candidates and their workers, to engage in non-communicative but otherwise campaign-related activity, specifically, ‍‌​‌‌​‌‌​​​​‌​​​​‌​​​‌​‌‌‌​‌​‌‌​‌‌​​‌​​‌​​‌‌‌​​​‌‍observing voters аnd checking a voters’ list, outside the polling place but within the 250-foot limit.” Op. Atty. Gen. 82-30, at p. 63.

3. Is that illegality, then, sufficient to void the referendum? We think that it is. There is a sanctity to elections under our system of self-government, wherein the will of the people — freely voiced and fairly polled — is the supreme law, and that sanctity must be preserved from all assault, witting or no. See . Accordingly, upon review of the record, we conclude that the illegality attendant upon thе referendum is such as is “sufficient to change or place in doubt the result” thereof, OCGA § 21-2-522 (Code Ann. § 34-1703), and another referendum must be held.

Judgment reversed. All the Justices concur, except Clarke, Smith and Gregory, JJ., who dissent.

Black, Black & Cannon, Eugene C. Black, Jr., for appellant.

Kenneth L. Hornsby, for appellee.

SMITH, Justice, dissenting.

” ‘Election returns carry a presumption of validity. [Cit.]’ The burden of establishing an irregularity or illegality ‘sufficient to change or place in doubt the (election) result’ ... is on the party contesting the election. [Cit.] The contestant ‘must show that a sufficient number of electors voted illegally or were irregularly rеcorded in the contest being challenged to change or cast doubt on the election.’ [Cit.]” . See also .

Today‘s majority opinion does not cite or attempt to distinguish these cases, and for good ‍‌​‌‌​‌‌​​​​‌​​​​‌​​​‌​‌‌‌​‌​‌‌​‌‌​​‌​​‌​​‌‌‌​​​‌‍reason. They are indistinguishable from this appeal and should control its outcome. In , a case in which an election for school superintendent was decided by a 33-vote margin, the contestant made a showing that 68 absentee ballots were cast in an irrеgular manner. We held that this showing, standing alone, “was insufficient to establish the prima facie invalidity of those ballots and shift the burden to the defendants to show othеrwise.” .

In contrast to , appellant here has utterly failed to make any showing how the alleged irregularities affected the final vote tally. “The contestant ‘must show thаt a sufficient number of electors voted illegally ... to change or cast doubt on the election.’ ” (Emphasis supplied.) This appellant has failed to do, instead relying on speculation and what amounts to an “appearance of impropriety” in the election procedures. Under our statutes and cases, this was not enough to set aside the election.

I agree with the majority that the use of “check off” personnel within 250 feet of a polling place violates OCGA § 21-2-408 (Code Ann. § 34-1310) and is per se an election irregularity. Unlike the majority, I decline to do away with the requirement that ‍‌​‌‌​‌‌​​​​‌​​​​‌​​​‌​‌‌‌​‌​‌‌​‌‌​​‌​​‌​​‌‌‌​​​‌‍appellаnt prove that this irregularity was “sufficient to change or place in doubt the [election] results,” OCGA § 21-2-522 (Code Ann. § 34-1703), and I would affirm the judgment of the trial court, which correctly refused to set this election aside.

I am authorized to state that Justice Clarke and Justice Gregory join in this dissent.