Avery v. Bower
| Decision Date | 26 February 1930 |
| Docket Number | 7044. |
| Citation | 152 S.E. 239,170 Ga. 202 |
| Parties | AVERY v. BOWER. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The allegation that one is a "bona fide resident" of a named municipality, or that such person "has been residing in *** for several years," is not the equivalent of an allegation that such person is a voter therein. A person may be a qualified voter in one place and a bona fide resident for "several years" in another place. This is especially true in the case of a county superintendent of schools, who may be a voter in some part of the county other than within a local independent school district, and at the same time may, during his term of office, fix a residence for purposes of convenience to himself and the public within the independent school system. In such case he need not be a voter of the independent district and so prohibited from voting for county superintendent of schools, as declared in the act (Ga. Laws 1919, p. 349, § 147) as follows: "Voters of such independent system or systems shall not vote in the election for the County superintendent."
Construing the petition as alleging the domicile of the defendant to be in the city of Bainbridge, the same being an independent school district, the petition was not subject to the demurrer, on the ground that it did not allege a cause of action. If domiciled in Bainbridge, the defendant was not qualified to vote for county school superintendent. The court erred in sustaining the general demurrer.
One ground of demurrer attacks the petition because "there is no prayer for process and no process attached to the petition," and another because the petition is not verified positively, and another because there was no application for leave to file an information and no rule issued requiring respondent to show cause why leave to file such information should not be granted. These are amendable defects, and the petition should not have been dismissed on these grounds, but petitioner should have been allowed to amend. It is assumed that the general order dismissing the petition was not based upon these grounds of the demurrer.
Four grounds of the demurrer undertake to attack a portion of section 147 of the Code of School Laws (Ga. Laws 1919, p 349), which provides that voters in independent school systems shall not vote in the election for county school superintendent, because the same is "derogatory of, in conflict with, and contrary to" several designated sections of the Constitution of the state of Georgia. Each of these grounds of demurrer fails to point out how or in what manner the statute is in conflict with the Constitution, and consequently they do not raise any question for determination by this court.
The brief of defendant in error contains references not entirely courteous to opposing counsel, and such expressions should not be found in a brief. Furthermore, the brief contains statements of numerous facts not found in the record, and none of such expressions not found in the record should have been included in the brief.
Additional Syllabus by Editorial Staff.
"Residence" and "domicile" are not synonymous; concurrence of actual residence and intent to remain being necessary to acquisition of domicile.
Wherever the word "reside" occurs either in the statutes or in the Constitution of Georgia, with respect to voting, it should be construed to mean "domicile."
Error from Superior Court, Decatur County; B. C. Gardner, Judge.
Petition by Andrew Avery against Roland Bower to oust defendant from office of county school superintendent. Judgment for defendant, and plaintiff brings error.
Reversed.
General order dismissing petition is assumed not to have been based on grounds of demurrer presenting amendable defect.
Avery as a citizen and taxpayer, filed a petition in which he prayed that Roland Bower be ousted from the office of county school superintendent of Decatur county; that quo warranto issue in terms of the law; and for general relief. The petition alleges that Bower has for several years resided within the city of Bainbridge, an independent school district in Decatur county; that voters residing within such independent school district are ineligible to vote in any election for county school superintendent; that by reason of the legal domicile of Bower being in said independent school district, and not being a qualified voter for the office of county school superintendent, he is ineligible to become a candidate for said office and ineligible to hold said office. The defendant demurred upon the grounds: (a) The petition does not set forth a cause of action. (b) It is not alleged that Bower is a voter in the independent school system of Bainbridge. (c) There is no prayer for process, and no process is attached to the petition. (d) There was no application for leave to file an information, and no rule issued requiring respondent to show cause why leave to file such information should not be granted. (e) The petition is not verified positively, as required by law. (f) It appears that the action is based on language contained in section 147 of the Code of School Laws (quoted in the first headnote), "which is derogatory of, in conflict with, and contrary to" "article 2, § 1, par. 2," Code § 6396; and article 1, § 4, par. 1, Code § 6391; (sic) and article 2, § 1, par. 3, Code § 6397; and article 2, § 1, par. 4, Code § 6398, of the state Constitution. (g) The portion of the act just mentioned is inoperative and ineffectual, because no provision is made for determining the voters residing in the 513th militia district in which the city of Bainbridge is located; and because the act does not require special registration of the voters living within said militia district without the city limits of Bainbridge, and there is no method for separating and identifying the voters of the district residing outside the corporate limits of Bainbridge from those residing within the city. The demurrer was sustained and the petition dismissed.
P. D. Rich, of Bainbridge, for plaintiff in error.
Bower & Bower and A. B. Conger, all of Bainbridge, for defendant in error.
1. Eligibility to hold office is the general rule. Ineligibility is the exception. The right to hold office is a political privilege. The Civil Code 1910, § 258, subsecs. 1 to 8 inclusive, provides exceptions to the general rule. Subsection 1 makes all persons ineligible who are not citizens of this state. Subsection 7 provides that no person shall be eligible to hold any county office in any county of this state, unless he shall have been a bona fide resident of the county in which he shall be elected or appointed at least two years prior to his election or appointment, and is a qualified voter, entitled to vote. The petition alleges that the defendant is "a bona fide resident of the City of Bainbridge" and "has been residing in said independent school district of Bainbridge for several years." In another paragraph of the petition it is alleged that "voters residing within the limits of said independent school district are ineligible to vote in any primary or election for county school superintendent." This paragraph, in substance, states a part of the school law of this state, as declared in the act of 1919 (Ga. L. 1919, p. 349, § 147). Thus it will be seen that there is no contention that the defendant Bower is not a citizen of the state and county, nor that he has not resided in the county for the time required for eligibility to hold the office. Nowhere in the petition is it expressly alleged that defendant Bower is a voter of the city of Bainbridge in which there is an independent school district. Petitioner depends, therefore, upon a conclusion that, if Bower resides in the city of Bainbridge, he must therefore be a voter therein, thus falling within the inhibition against voters of such independent school system taking part in an election for county school superintendent.
"Residence" and "domicile" are not synonymous and convertible terms. A man may have several residences, but only one place of domicile. There must be a concurrence of actual residence and the intention to remain, to acquire a domicile. Worsham v. Ligon, 144 Ga. 711, 87 S.E. 1025. Neither residence nor domicile, standing alone, furnishes the qualifications for the privilege of voting . Even one who has established citizenship, which is broad enough to include both residence and domicile, within a county of this state, must perform other public duties such as registration before he is a qualified voter, as provided by the Constitution and laws of Georgia. Civil Code 1910, § 6395 et seq. (Constitution, art. 2, § 1, par. 1). Therefore the allegation that the...
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