Barrett v. City of Perry, 27174

Citation191 S.E.2d 74,229 Ga. 267
Decision Date16 June 1972
Docket NumberNo. 27174,27174
PartiesPaul J. BARRETT et al. v. CITY OF PERRY et al.
CourtGeorgia Supreme Court

Jones, Cork, Miller & Benton, Carr G. Dodson, Rufus D. Sams, III, Macon, for appellants.

Aultman, Hulbert, Cowart & Daniel, D. P. Hulbert, Tom W. Daniel, Perry, Spencer, Smith & Williams, R. Thomas Spencer, Warner Robins, for appellees.

Syllabus Opinion by the Court

UNDERCOFLER, Justice.

The principal issue in this appeal is whether the election of the mayor and councilmen of the City of Perry is by a majority or plurality vote. Held:

1. Code Ann. § 34A-1407(a) of the Municipal Election Code provides: '(a) If the municipal charter or ordinance, as now existing or as amended subsequent to the effective date of this subsection, provides that a condidate may be nominated or elected by a plurality of the votes cast to fill such nomination or public office, such provision shall prevail. Otherwise, no candidate shall be nominated for public office in any primary or elected to public office in any election unless such candidate shall have received a majority of the votes cast to fill such nomination or public office.' Ga.L.1968, pp. 885, 977; 1970, pp. 341, 344.

This section clearly provides that a candidate may be elected by a plurality of the votes cast if the charter or ordinance of the municipality so provides.

In 1937 a new charter for the City of Perry was granted (Ga.L.1937, p. 2029). Section 4 of this act provides for the election of the mayor and council but does not state whether a majority or plurality vote is required. Section 15 of the Act deals with the election managers and rules for election and provides in part: 'The persons receiving the highest number of votes for the respective offices shall be elected and shall be furnished with a certificate of election by the election managers, which certificate shall be evidence of election and shall entitle such person to take office.' Section 20 provides: 'In case of a tie between two or more candidates in any election for mayor and councilmen or either of them, or other elective officers, a new election as between candidates thus tied shall be ordered within ten days after the result has been declared, under the same registration list, and the person receiving the highest number of votes cast in said election shall be declared duly elected.'

In 1964 (Ga.L.1964, p. 2805) Section 4 of the charter of the City of Perry was amended to provide that councilmen shall be elected by majority vote of the qualified voters. This act contained a provision which repealed: 'All laws and parts of laws in conflict with this Act . . .'

The 1964 Act thus impliedly repealed that part of Section 15 of the Act of 1937 which had allowed the election of councilmen by plurality of votes.

In 1970 (Ga.L.1970, p. 2341) Section 4 of the charter was stricken in its entirety and a new Section 4 substituted. The new Section 4 was silent as to the vote required for election.

In Butner v. Boifeuillet, 100 Ga. 743, 748(1, 2), 28 S.E. 464, 466 this court said: 'While the general rule seems to be that, where the provisions of an act repealing a prior statute upon the same general subject are in turn themselves repealed, such repeal operates to restore to their efficacy as law the provisions of the prior repealed statutes, such general rule is not without clearly defined and well-recognized exceptions. The rule itself rests upon the theory that each expression of the legislative mind represents the legislative intent at the time of that expression, and that the repealing statute indicates a change of the legislative purpose as expressed in the prior law; and, therefore, when the repealing statute is in turn repealed, without any reference to the pre-existing law, the presumption is that the legislature intended by the repeal to restore the order of things existing under the repealed statute. But this rule can have no application in a case where the statute repeals absolutely a prior existing law, and substitutes for it another and more comprehensive scheme of legislation, which undertakes to deal with the whole subject to which the prior statute relates.' To the same effect, see Warren v. Suttles, 190 Ga. 311(1), 9 S.E.2d 172.

It follows that Section 15 of the original 1937 charter is controlling and the mayor and councilmen of the City of Perry are elected by a plurality of votes cast.

2. The appellants contend that the trial court had no authority to dismiss the complaint for failure to state a claim.

Code Ann. § 81A-112(b) provides that the defense of failure to state a claim upon which relief can be granted shall be treated as one for summary judgment when matters outside the pleading are presented to the court. Ga.L.1966, pp. 609, 622; 1967, pp. 226, 231; 1968, pp. 1104, 1106.

The parties stipulated certain facts in this case for consideration by the trial court and the motion to dismiss was properly treated as one for summary judgment.

3. The appellant further contends that the 1970 amendment to Section 4 of the city's charter (Ga.L.1970, p. 2341) is void because it was not submitted to the United States Attorney General for his approval or rejection (79 Stat. 445, 42 U.S.C.A. § 1973c).

Without deciding whether this question can be raised in a State court (see 42 U.S.C.A. § 1973j(f), the Municipal Election Code of 1968 (Code Ann. § 34A-1407(a)) was approved by the Attorney General of the United States on July 11, 1968 (with certain exceptions not involved with this section).

Division 1 of this opinion holds that the Municipal Election Code of 1968 (Code Ann. § 34A-1407) clearly allows the type of amendment passed by the legislature in 1970 amending Section 4 of the city charter. Therefore, the 1970 charter amendment did not have to be submitted to the Attorney General for his approval. See Jenness v. Little, D.C., 306 F.Supp. 925(2).

4. The trial court properly dismissed the complaint.

Judgment affirmed.

All of Justices concur, except HAWES and GUNTER, JJ., who dissent.

GUNTER, Justice (dissenting).

The issue to be decided here is whether a majority vote or a plurality vote is required to elect a person to the office of mayor in the City of Perry, and whether a majority vote or a plurality vote is required to elect a person to the office of councilman in the City of Perry.

This action arose because none of the candidates for mayor in the December, 1971 election received a majority of the votes cast, and none of the candidates for one council post received a majority of the votes cast in that election.

The 1937 charter for the City of Perry provided for the election of the mayor and council, but it did not state explicitly in Section 4 whether a majority vote or a plurality vote was required for election. However, Section 15 of the 1937 charter provided in part as follows: 'The persons receiving the highest number of votes for the respective offices shall be elected and shall be furnished with a certificate of election by the election managers, which certificate shall be evidence of election and shall entitle such person to take office.'

Therefore, it is my opinion that the 1937 charter of the City of Perry provided for election of a mayor and the members of the council by a plurality vote.

In 1964 the 1937 charter was amended by adding to Section 4 of the original charter a provision that the six council posts should be numbered 1 through 6, a provision that election to such specific post shall be by majority vote, and a further provision providing for a run-off election between the two candidates with the highest number of votes. No mention was made of the office of mayor in the 1964 Act. Section 2 of the 1964 Act provided that 'all laws and parts of laws in conflict with this Act are hereby repealed.' Ga.L.1964, p. 2805.

It seens clear to me that after the 1964 Act became law the mayor of Perry could still be elected by a plurality vote, but the six councilmen had to be elected by majority vote, and if none of the candidates for a council post received a majority in the first election, then a run-off election was required between the two candidates having the highest number of votes in the race for that post. The 1964 Act repealed that part of Section 15 of the 1937 charter which said, as I interpret it, that councilmen could be elected by plurality vote. The 1964 Act did not repeal that part of Section 15 of the 1937 charter which said, as I interpret it, that the mayor could be elected by plurality vote.

In 1968 the General Assembly enacted the Georgia Municipal Election Code. A provision of that Code provided that...

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