Opinion
31045.
DECIDED NOVEMBER 21, 1945. REHEARING DENIED DECEMBER 5, 1945.
Validation of bonds; from Floyd superior court — Judge Porter. August 4, 1945.
James Maddox, for plaintiffs in error.
Henderson Lanham, solicitor-general, Chastine Parker, contra.
1. The questions presented for determination by the writ of error, which are dealt with in divisions 1, 2, and 4 of the opinion, show no substantial or reversible error.
2. According to the record in this case, no list of the registered qualified voters of Floyd County or West Rome school district was filed in the office of the clerk of the superior court of said county by the board of registrars or by anyone else at any time during the years 1944 and 1945, but the registrars made up a list of registered voters of the county and left it in the tax collector's office. The Code, § 34-404, provides that "within five days after completing the list of voters, the registrars shall file with the clerk of the superior court of their county a complete list of the registered voters of the county as prepared and determined by them;" and, under the ruling in Chapman v. Sumner Consolidated School District, 152 Ga. 450 ( 109 S.E. 129), the provision of the section just quoted is mandatory, and "No person is lawfully entitled to vote in a school-district bond election held under section 143 of the `Code School Laws of Georgia' (Acts 1919, pp. 288, 345), whose name does not appear on any list of the county registrars filed with the clerk of the superior court of the county showing the names of the registered voters of the county entitled to vote." Accordingly, there were no legally registered qualified voters in the West Rome school district who could vote in the election held therein on May 19, 1945, and, consequently, said bond election was invalid, as shown by division 3 of the opinion herein.
DECIDED NOVEMBER 21, 1945. REHEARING DENIED DECEMBER 5, 1945.
The State of Georgia, through Henderson Lanham, solicitor-general of the Rome judicial circuit, on June 11, 1945, filed a petition in Floyd superior court against the West Rome school district of Floyd County, seeking to validate certain bonds; and alleged that W. P. Nicholson, H. A. Burns, and G. P. Holbrooks, composed the board of trustees of said school district, and that a petition signed by more than one-fourth of the registered qualified voters of said school district had been presented to said board of trustees, asking that an election be called for the purpose of determining whether bonds in the sum of $10,000 should be issued for the purpose of building and equipping a schoolhouse. The other necessary and appropriate allegations to such a proceeding were set out in the petition, and a copy of the notice to the solicitor-general to bring the proceeding to validate the bonds, copy of the petition filed with the board of trustees to call the election, the resolution calling the election, the notice published in the newspaper and posted in the school district, and the resolution declaring the result of the election, were attached thereto as exhibits A, B, C, D, and E, respectively.
The West Rome school district, through its board of trustees filed an answer, admitting all of the allegations of the petition.
T. E. Lumpkin and others filed an intervention, which was allowed, and alleged substantially that, at the time the petition was presented to the board of trustees of said school district asking that an election be called to determine whether or not bonds should be issued, there were no registered qualified voters of said school district for the reason that no list of said voters, as required in the Code, § 34-404, had been filed in the office of the clerk of the superior court of Floyd County by the registrars of said county, nor was such list filed in the clerk's office by the registrars at any time during the years 1944 or 1945, and for that reason there were no registered qualified voters in said district who could file such a petition for the purpose of calling an election for bonds; that such petition was without effect and the resolution of the board of trustees calling the election was null and void for the same reason; that the sum of $10,000 of bonds could not be issued in said school district, for the reason that said amount of bonds together with the present bonded indebtedness of the school district, would amount to more than seven percent of the taxable value of property located in that school district; that the first advertisement of the notice published in the newspaper was on April 19, 1945, and was 29 days prior to the date of the election instead of 30, and that the notice for the space of 30 days next preceding the day of the election, which was held on May 19, 1945, was not given as required by law; that no list of registered qualified voters was made up and furnished to the managers of said election as contemplated and required by law, and the only list furnished for said election was furnished by the tax collector on the day before the election, which list was never certified by the board of registrars; and it was contended that the election was void for the reasons set forth in the intervention.
The case was tried before Honorable C. H. Porter, judge of said circuit, upon the following agreed statement of facts: "That W. P. Nicholson, H. A. Burns, and G. P. Holbrooks are the qualified, elected trustees of the West Rome school district, and were such at all times for more than one year prior to this date; that a petition was presented to said trustees signed by the persons and in identical language as exhibit B to the petition to validate bonds; that said board of trustees passed the resolution set forth as exhibit C to the petition to validate bonds; that the notice in identical language with exhibit D of the petition to validate bonds was posted at three public places in said district more than ten days before and up to the date of the election, and that the same was advertised in the Rome News-Tribune, the newspaper published in Floyd County, Georgia, and where sheriff's advertisements are carried, on four different dates, the first publication being April 19, the second April 23, the third April 30, and the fourth May 7, 1945. (2) That the election was held on May 19, 1945, the polls being opened at 7 a. m., central war time, and remaining open until 6 p. m., central war time. After the consolidation of said vote the result was declared by the board of trustees in identical words and language as set forth in exhibit E to the petition to validate said bonds. (3) That the list of voters used at said election by the election officials in determining who could vote therein was not certified by the board of registrars of Floyd County, Georgia, or any of them but had attached thereto the following certificate: `I hereby certify that the within and subjoined list is a true and correct list of the qualified voters of the West Rome school district of Floyd County, Georgia, for schoolhouse bond election to be held on the 19th day of May, 1945. This 18 day of May, 1945. T. E. Clemmons, State and County Tax Collector, Floyd County, Georgia;' that at said time, and at no time during the year 1945, or the year 1944, was there a list of the qualified registered voters certified by the board of registrars of Floyd County, Georgia, filed or deposited in the office of the clerk of the superior court of Floyd County, Georgia, but the only list so made up by said board of registrars of Floyd County, Georgia, was deposited in the office of the tax collector of Floyd County, Georgia, and the list furnished for this bond election was made up from the list filed or deposited in the tax collector's office by the board of registrars; that there were not sufficient errors in said list to have changed the result of the election. (4) It is agreed that all of the intervenors are citizens of the State of Georgia residing in said West Rome school district of Floyd County, were residents of said district at the time of the election, and are at the present time. (5) That there were issued $4000 of bonds for said school district, which bore interest at 5 percent per annum and payable annually; that said principal was to be paid in the sum of $200 per year, together with interest thereon, payable September 1 of each year, and that the first payment became due and payable September 1, 1936, and that $200 has been paid each year since said time on September 1, together with interest thereon; that at the time of the call of said election, and the date of said election, there was unpaid the amount of $2200 of said bonds, but thereafter and on the 19th day of June, 1945, said trustees paid the bonds due September 1, 1945, of $200, and paid the interest on the other bonds up to September 1, 1945, It is further agreed that the tax digest for said school district for the year 1944 was $175,576, and that no digest has been completed for the year 1945, but that the valuation would be approximately the same, and at the date of said election said trustees had on deposit in the bank in a special fund for the payment of said outstanding bonds and interest thereon the sum of $1658.10. It is also agreed that the notice of said board of trustees was given to the solicitor-general in the exact language as set up in the exhibit to the petition to validate said bonds."
The court passed an order validating the bonds, and the intervenors excepted.
1. It is contended by the plaintiffs in error that the notice of the election was insufficient, for the reason that it was signed by the trustees as individuals, instead of in their official capacity. This contention is without substantial merit, under the record here presented. The petition for the election was addressed to the board of trustees, the resolution calling the election was passed by the board of trustees, and authorized the publication and posting of the notice of the election by the board of trustees, and the resolution calling the election was officially declared by the trustees, and the election was held in response to the notice, with 80 voting for bonds and 12 against, out of the total number of 138 voters in the district, according to the list furnished to the election managers by the tax collector.
2. The notice of the election was published in the newspaper in which the sheriff's advertisements of the county are published, on April 19, 23, 30, and on May 7, 1945, and the election was held on May 19, 1945. It is contended by the plaintiffs in error that this did not comply with the provisions of the Code, § 87-201, in that the notice was not published for a period of 30 days before the election, but for only 29 days, and the Code, § 102-102, is cited to sustain this contention. Section 87-201 provides that the notice shall be published for the space of 30 days next preceding the election. Counting April 19, the first day of the publication, and not counting May 19, the day of the election, the notice was published for the space of 30 days before the election, as required by section 87-201. Montford v. Allen, 111 Ga. 18-30 (36 S.E. 305). The contention of the plaintiff in error in this respect is without merit.
3. According to the record, no list of the registered qualified voters of the county or district was filed in the office of the clerk of the superior court by the board of registrars or by anyone else at any time during the years 1944 or 1945, but the registrars had made up a list of the registered voters of the county and left it in the tax collector's office; and it is contended by the plaintiffs in error that there were no legally registered qualified voters in said school district who could present a petition to the board of trustees requesting that an election be called, or who could vote in the election subsequently called. The Code, § 34-404, provides that, "Within five days after completing the list of voters, the registrars shall file with the clerk of the superior court of their county a complete list of the registered voters of the county as prepared and determined by them." It was held in Chapman v. Sumner Consolidated School District, 152 Ga. 450 (2) (supra), that: "No person is lawfully entitled to vote in a school-district bond election held under section 143 of the `Code of School Laws of Georgia' (Acts 1919, pp. 288, 345), whose name does not appear on any list of the county registrars filed with the clerk of the superior court of the county showing the names of the registered voters of the county entitled to vote. (a) This is true notwithstanding the name of such person does appear on the voters' book of the tax-collector of the county, and, except as to registration as mentioned in the headnote numbered two, he is otherwise a qualified voter under the law of Georgia. . . (d) This is true although the name of such person `does appear on the certified list of registered voters furnished by the ordinary to the managers of the election and also appears on the voters' book of the tax-collector of the county, and although the name of such person was entered in such voters' book within six months of said special bond election but more than six months before the next ensuing general state election,' and, except as to registration as mentioned in the headnote numbered two, he is otherwise a qualified voter under the laws of Georgia." In the opinion in that case it was said: "The voter's name must appear on a list general or supplementary, of the county registrars, filed with the clerk of the superior court of the county, showing the registered voters of the county entitled to vote; otherwise such person can not vote." See also Sheffield v. Patmos School District, 157 Ga. 660, 665 ( 122 S.E. 57); Chapman v. Sumner Consolidated School, 28 Ga. App. 152 ( 110 S.E. 453); Trustees of St. Clair School District v. Broxton, 38 Ga. App. 65 ( 142 S.E. 575). Under the ruling in the Chapman case, the provision in the Code, § 34-404, that the registrars shall file a list of the registered voters with the clerk of the superior court of the county, seems to be mandatory. Under the act of 1921 (Ga. L. 1921, p. 221), it was provided that the tax collector of the county furnish the list of registered voters to the election managers of the school district, in stead of the ordinary, as was provided by the act of 1919, effective at the time the Chapman case was decided by the Supreme Court; and, while it appears from the agreed statement of facts in the present case that the list of voters furnished by the tax collector to the election managers was made up from the list of voters deposited in the tax collector's office by the registrars of Floyd County (not in the office of the clerk of the superior court), and there were not sufficient errors in said list to have changed the result of the election, still under the ruling of the Supreme Court in the Chapman case, the ones signing the petition to the board of trustees to call the election and those voting in said election were not registered qualified voters so as to entitle them to sign the petition or to vote in the bond election, and under the rulings in the case just mentioned the bond election was void.
4. The list of voters used was certified by the tax collector, and not by the board of registrars, and was furnished to the election managers on May 18, 1945, one day before the election, instead of being furnished to said election managers ten days before said election, and it is contended that the election was void for this reason. It does not appear that the result of the election would have been different had the list been certified and furnished to the election managers ten days before the election. Under the ruling in Hawthorne v. Turkey Creek School District, 162 Ga. 462, 467 ( 134 S.E. 103), it seems that the provision in the Code, § 32-1401, requiring that the tax collector furnish a certified list of registered voters in the school district to the election managers ten days before the election is directory. Failure to observe a directory provision of the law will not void an election, unless it is shown that the result of the election would have been different if the provisions had been observed. See Code, § 34-3101. Consequently, the point raised that the list of registered voters was not furnished in time to the election managers is without merit.
5. The indebtedness of the school district, including the proposed bond issue of $10,000, had been reduced to an amount within the constitutional limitation of seven per centum of the assessed value of the taxable property in said school district (Code, § 2-5501), and the question raised in this respect has become moot.
6. The bond election was invalid for the reasons stated in division 3 of the above opinion.
Judgment reversed. Felton and Parker, JJ., concur.