Adair v. McElreath

• Decision Date: 15 November 1928
• Docket Number: 6684.
• Citation: 145 S.E. 841,167 Ga. 294
• Parties: ADAIR et al. v. McELREATH et al.
• Court: Georgia Supreme Court

145 S.E. 841

167 Ga. 294

ADAIR et al. v. McELREATH et al.

No. 6684.

Supreme Court of Georgia

November 15, 1928

Syllabus by the Court.

Under the charter of the city of Cartersville, any candidate for nomination or election to the office of alderman in that city, who pays, gives, or offers to pay or give, directly or indirectly, money or anything of value, or who shall knowingly suffer any person to do so, for the purpose of obtaining the vote or influence of any elector, or obtaining his vote or influence against an opposing candidate, is disqualified thereby to fill the office of mayor or commissioner of the city.

(a) "Anything of value," as used in the above provision of the charter of Cartersville, does not include promises of future and indefinite benefits, which candidates allege will accrue to the people of the city generally from a course of official conduct to be followed by the candidates for election; and promises of such benefits will not disqualify a candidate from holding the office of mayor or commissioner of the city.

(b) Under the charter of the city it is "unlawful for any candidate for office or any officer of said city, directly or indirectly, to give or promise any person or persons any office, position, employment, benefit, or anything of value for the purpose of influencing or obtaining the political support, aid or vote of any person or persons."

(c) The gift or promise of "benefit or anything of value," within the meaning of this provision of the city's charter, does not make unlawful promises by a candidate of benefits which will come to the people as a whole from a course of official conduct proposed to be pursued by the candidate if elected.

[Ed Note.-For other definitions, see Words and Phrases, First Second, and Third Series, Anything of Value.]

The charter of this city provides for the holding of primary elections for the nomination of candidates for election as aldermen at the general election. Any person desiring to become such candidate must file with the election managers not later than 10 nor earlier than 20 days before the primary election, a statement of his candidacy and a certificate sworn to by him that he is qualified to fill the office to which he seeks election, and that he can give the required bond. He or some qualified voter in the city must file a certificate of not less than 10 qualified voters in the city who are property taxpayers therein, that his candidacy is requested by them, and that to the best of their knowledge he is qualified to fill the office to which he seeks election. If more than 6 persons qualify by complying with the above requirements, the election managers shall hold a primary election as provided by the charter, and shall cause the names of all such persons to be printed as candidates upon the ticket to be used at the primary election, and shall cause to be published in the manner prescribed by the charter the names of candidates who will appear on the ticket at the primary election. No person who has not complied with the above requirements shall be placed upon the ticket. In the event that only 6, or less than 6, comply with the above requirements as to statements and certificates, no primary election shall be held, but the names of such persons shall be placed on the ballots as candidates for the board of aldermen and shall be voted for as such.

(a) The above requirements are mandatory if their enforcement is sought before election in a direct proceeding for that purpose; but after election they are directly only in support of the result, unless failure to comply therewith effects an obstruction to the free and intelligent casting of the vote, or the ascertainment of the result, or unless such requirements are an essential element of the election, or unless it is expressly provided by statute that the particular requirement is essential to the validity of the election, or that its omission renders it void.

(b) The fact that the statement of one of the candidates was sworn to before a de facto notary public, both the notary and the candidate thinking that the notary was a de jure officer and both acting in good faith, did not render invalid the statement of such candidate.

The trial judge did not err in sustaining the demurrer and dismissing the petition.

Error from Superior Court, Bartow County; Edgar E. Pomeroy, Judge.

Information in nature of quo warranto by Dr. R. D. Adair and others against H. P. McElreath and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

Dr. R. D. Adair and others applied for leave to file an information in the nature of a quo warranto, in order that they might inquire into the right of H. P. McElreath, H. L. Smith, and H. H. Green to hold offices as mayor and aldermen of the city of Cartersville. Relators attacked respondents' eligibility to hold these offices, upon the ground that they had violated the corrupt practices provisions of the charter of the city of Cartersville, in the announcement of their candidacies, which was admitted to have been published in a weekly newspaper in that city at the time they became such candidates. This announcement is as follows:

"For a Greater Cartersville. To the Citizens of Cartersville:

We hereby make formal announcement of our candidacies for Aldermen of the City of Cartersville, based on a statement of our position with reference to the contemplated sale of our light and gas franchises to the Georgia Power Company and the relation of such sale to the immediate development of hydro-electric power on Etowah River at our very doors.

"The power company offers to purchase our light and power distributing system and our gas plant and distributing system, together with the grant of a franchise right to continue to do a light, power, and gas business in Cartersville at and for the sum of $300,000. The franchise right sought is not a perpetual franchise, as has been erroneously charged, nor an exclusive franchise, as some would have you believe, but, on the contrary, the city does in fact reserve the right to reestablish itself in the same business whenever it finds it wise or expedient to do so. The offer further provides that in the event a sale is consummated on these terms, the power company obligates itself to develop the hydro-electric power on Etowah River. In the event the Etowah River power development is not undertaken within a few months and pushed to completion, then no sale of the light and gas franchise takes place and these properties revert to the city.

"Sale Advantageous to the City. We believe a sale at $300,000 would be a fair and very advantageous one for the city to make. With that amount of money we could at once pay off all our bonded and floating indebtedness, amounting to approximately $180,000, and thus stop interest amounting to something like $10,000 a year. The balance we can take in cash, or, if the city prefers, in deferred payments bearing 6 per cent interest, over a spread of ten, fifteen, or twenty years. We would then be in a substantially fine financial condition.

"Future Welfare of our Schools Involved. We could then make the necessary school improvements and meet the demands of the educational authorities of the State with reference to our High School. We do not confine ourselves to a mere statement that we favor education, but we favor a given and certain program to insure its accomplishment. We favor the erection of a high school sufficient in size and facilities to furnish our boys and girls, and those immediately about us, a system of study and research to enable them to be equipped for life and business. Education counts for efficiency. A man or woman's opportunity and future, in this age, depends largely upon the school facilities provided by local government. Our children are our greatest asset, infinitely more valuable than the merely material value of a city franchise. We want it to be so that a diploma from a Cartersville High School will be, in itself, a guarantee of entrance to the higher schools of learning. We are unwilling to longer endure the shame and humiliation involved in the threat that, because of a lack of proper high school facilities, the value of a diploma from our high school will be taken from us. We do not see how, nor has any one else submitted a plan by which we can erect, or buy, or in any other way secure a high school worthy to be termed such. Cartersville is close to the limit of her debt-making power, and we have no money in the treasury. It is therefore mere hollow sound to proclaim in favor of education and a high school under existing conditions in Cartersville.

"Real Service at Fair Rates Imperative. A light, power, and gas business, to be satisfactory, must render service, and at fair rates. Such service ought to be commensurate with the needs of the community in which the business is being carried on. Admittedly the gas service has been poor, uncertain undependable, and vexatious. It has been a money-loser for the city, as well as for the user. But the city has not provided facilities by which household users of electricity can be had. True, it has recently published a rate for such uses; but something more than a mere rate must be furnished. Meters must be installed and transformers supplied by the city, wiring must be done, stoves, frigidaires, washing-machines, electric cooking utensils, carpet-sweepers, and churns must be provided. Is the city in position to finance this late undertaking so that it can provide the power and the user can provide the device? If the publication of such a rate does not bring about a substantial and general use of the rate, then the adoption of such a rate is illusory and vexatious and better not to have been adopted at all. If such a rate...