Opinion
33354.
DECIDED MARCH 2, 1951.
Validation of bonds; from Gwinnett Superior Court — Judge Pratt. September 26, 1950.
W. L. Nix, for plaintiffs in error.
Hope D. Stark, Solicitor-General, Allison Pittard, contra.
In the proceedings to validate bonds sought to be issued by the Town of Duluth, the court did not err in overruling the demurrer of the intervenors to the response to the intervention, and in passing an order validating the bonds under the facts of this case.
DECIDED MARCH 2, 1951.
An election was held in the Town of Duluth to determine whether bonds for the erection of a city hall and for street improvements should be issued. A petition in the name of the State, alleging that the election results had been in favor of the issuance of the bonds, was filed in Gwinnett Superior Court to have the bonds validated. The Town of Duluth filed its answer admitting the material allegations of the petition. A large number of citizens and taxpayers of Duluth filed an intervention and an amendment thereto setting forth various reasons why they contend that the bonds should not be validated and that the election was illegal and void. The allegations of the amended intervention were substantially as follows: that the majority of the qualified voters voting in said election did not vote for the issuance of said bonds; that the managers of said election were not a justice of the peace and two freeholders or three freeholders residing in the city limits of said town, as required by law, in that the justice of the peace, who acted as a manager lived outside the corporate limits of the town, and one of the other managers was not a freeholder, and that the managers who did act did not take the oath required of them by law; that the town did not provide a registration book as provided under its charter, and that the holders of the election did not have such a registration book in their possession while holding the election, as provided by law; that certain named persons who voted in said election and who voted for the bond issue were not qualified to vote, either because they resided outside the limits of Duluth or because they were not qualified to vote for members of the General Assembly of Georgia in Gwinnett County; that certain named persons voted in said election and in favor of the bond issuance, but were not qualified to vote for members of the General Assembly of Georgia, as provided by law, it being the law that, before a voter is qualified to vote in an election in said town, he must, besides other qualifications, be qualified to vote for members of the General Assembly in Gwinnett County, and were further disqualified to vote in said election because they were not registered voters in said town, as provided by law; that said election was illegal, null and void, in that the election managers did not keep two lists of voters and two talley sheets and follow the law in regard thereto; that the election polls were not kept open for the period of time required by law, said polls having been opened at nine o'clock a. m. and closed at three o'clock p. m.; that the election was held under the secret-ballot law, and said law was not complied with; that named persons voted in said election for the bond issuance, but were not qualified to vote because they had signed no voters' book, nor had they taken the prescribed oath as required by law.
The State and the Town of Duluth filed a joint response to the intervention, substantially as follows: (1) that a majority of the qualified voters voting in said election voted in favor of the bond issue; (2) that the irregularities existing in the appointment of the managers and their failure to take an oath did not affect the results of the election, and that such results would have been the same had such irregularities not existed; (3) that said election managers had in their possession a certified copy of the registered voters of Duluth, as prepared by the clerk of said town, and had a list of the registered and qualified voters of said town as certified by said clerk, and no person whose name appeared on such list was prevented from voting, and that said election was not affected in any way by the failure to have in the possession of said managers a registration book while holding said election; (4) that none of the persons named in paragraph 4 of the intervention voted in said election except one, who was qualified to vote therein; (5) that paragraph 5 of the intervention is denied, and that a large number of persons named therein did not vote in the election; (12) that the election was held between the hours of 9 a. m. and 3 p. m. as required by the charter of the City of Duluth; (14) that, if it be the law that a person to be qualified to register and vote in an election in the Town of Duluth must first be qualified and registered to vote in an election in Gwinnett County for the members of the General Assembly, the named persons who voted in said election against the bond issuance were disqualified so to vote because not so qualified and registered; (16) that said election was fairly held, and all voters were given and had equal opportunity to vote therein, and that, if any irregularities in the holding of the election did exist, such did not affect the results of the election; that certain other paragraphs of the intervention are denied.
The intervenors demurred to the joint response to the intervention on the grounds: that the response was jointly filed by the State, the plaintiff in the validation proceeding, and the Town of Duluth, the defendant therein, and that such adverse parties could not file a joint response to the intervention; specially to paragraph 14 of the joint response, in that such pleading was in the alternative and because the persons named therein by the town as being not qualified to vote were named on a voters' list furnished to the managers by the town, and therefore it was estopped to deny their registration and qualification. The court overruled the demurrers to the joint response and the intervenors excepted pendente lite. After hearing evidence, the court entered an order validating the bonds, and the intervenors except to that order and assign error on their exception pendente lite.
1. The court did not err in finding that the ineligibility of two of the managers of the election did not in and of itself vitiate the election. This question was not only squarely ruled on in State v. Mayor c. of Blue Ridge, 113 Ga. 646 (3) ( 38 S.E. 977), but the court in that case disapproved a contrary ruling by two judges in Walker v. Sanford, 78 Ga. 165 ( 1 S.E. 424).
2. The court did not err in holding that, under the charter of the Town of Duluth, it was unnecessary for a registration of voters to be had each year an election was to be held. Section 9 of the charter provides in part as follows: "That the town council shall provide a registration book in which shall be kept a list of the qualified voters, which shall be open for registration on the first day of November each year, and closed two days before any election to be held." Ga. L., 1906, pp. 714, 715. We hold that this section does not require a completely new registration of all voters every year an election is to be held.
3. The court was authorized to find that the other alleged irregularities were not sufficient to render the election void, in the absence of any fraud or any evidence that the election had not been fairly and honestly conducted, and in the absence of any evidence that the results of the election would have been different if there had been full compliance with the law. Hastings v. Wilson, 181 Ga. 305 ( 182 S.E. 375); Adair v. McElreath, 167 Ga. 294 ( 145 S.E. 841); Hooper v. Almand, 196 Ga. 52 ( 25 S.E.2d 778); State v. Carswell, 78 Ga. App. 84 ( 50 S.E.2d 621). The outcome of the election was in favor of bonds, whether or not votes on both sides of the issue were disallowed because of the alleged disqualification of voters by reason of not having been duly registered to vote for members of the General Assembly in Gwinnett County. The contention of the intervenors that the court should have found that certain other persons who voted for the bond issue were disqualified to vote in the election is without merit. In each case referred to, either the evidence failed to show that such person was disqualified (see Brown v. City of Atlanta, 152 Ga. 283, 297 (3a), 109 S.E. 666), or the evidence indisputably showed that such person was qualified, or there was conflicting evidence as to the person's qualification and the court was authorized to find therefrom that he was qualified to vote.
4. The court did not err in overruling the demurrer to the response to the intervention. In the first place, the response was not required pleading, and even if the State and the town could not file joint pleadings, the irregularity was not fatal to the pleadings. The town was not estopped to deny the disqualification of voters by having permitted them to attempt to register.
The court did not err in overruling the demurrer of intervenors to the response to the intervention, and in passing an order validating the bonds.
Judgment affirmed. Sutton, C. J., and Worrill, J., concur.