City of Madison v. Wade

• Citation: 16 S.E. 21,88 Ga. 699
• Parties: MAYOR, ETC., OF CITY OF MADISON v. WADE et al.
• Decision Date: 19 January 1892
• Court: Supreme Court of Georgia

16 S.E. 21

88 Ga. 699

MAYOR, ETC., OF CITY OF MADISON v. WADE et al.

Supreme Court of Georgia

January 19, 1892

Syllabus by the Court.

1. While the act of 1877 confers authority on the city council of Madison to require registration of persons qualified to vote at any corporate election, and therefore at an election to approve the local school act of 1889, no ordinance comprehensive enough to include this latter election having been passed when the election was held, the only elective body to which the school act could then be submitted was the legally qualified voters of the city, irrespective of registration. The managers of the election having rejected the votes of nonregistered electors, and confined the vote to the persons whose names appeared on a registration list made under the existing ordinance, and with reference to a previous election of a different kind, the submission was not to the whole body of legal electors. The existing registration ordinance applies only to elections for municipal officers.

2. Under the language of the constitution, the school act of 1889 would have to be submitted to all the qualified voters mentioned in the act itself, and two thirds voting at the election would not be sufficient to approve the act, unless they were two thirds of the whole number qualified to vote. It would be competent for the city, by passing a proper registration ordinance, to provide for ascertaining the whole number, but, until this is done, the act of 1889 cannot be worked in harmony with the provisions of the constitution. For the two local acts referred to, see Acts 1877, p. 174; Acts 1889, p. 1311.

3. Registration adds no qualifications to voters, but only serves to identify them as persons qualified to vote.

Error from superior court, Morgan county; W. F. JENKINS, Judge.

Petition by James A. Wade and others, citizens and taxpayers of the city of Madison, to restrain the mayor and council of said city from collecting a tax which had been assessed for the support of public schools, and from establishing such schools in that city, etc. Judgment for plaintiffs. Defendants bring error. Affirmed.

Registration adds no qualifications to voters, but only serves to identify them as persons qualified to vote.

The following is the official report:

The petition made, in brief, the following allegations: The mayor and council are about to elect a board of education and rent or build schoolhouses in the city, and provide for the establishment of free schools, and thereby incur a large expense, which must necessarily increase city taxation so that it will become burdensome to the citizens. They are proceeding to do this under an election held on July 16 1891, which election was held under the provisions of an act approved October 25, 1889, entitled "An act to establish a system of public schools in the city of Madison, Georgia to levy and collect a tax for maintaining and supporting said schools; to authorize the county school commissioners of Morgan county to pay over to the board of education of said public schools, for the use of said public schools, such part of the state school fund as may be their just pro rata share thereof; and for other purposes therein named." By an act approved February 1, 1877, entitled "An act to provide for the registration of voters in the corporate elections of the city of Madison and enforce the same," the charter of Madison was amended so as to authorize the registration of voters in the corporate elections of the city. By this last-named act the mayor and aldermen were empowered and authorized to enact such ordinance, providing for the registration of voters in the corporate elections of the city, as would, in their discretion, conduce to the interest and peace of the people. In accordance with the act the mayor and council adopted an ordinance providing that on the 1st of January the clerk of the city council should open a book for the registration of voters, which book should be the evidence of a voter's having registered; that the qualifications for registration should be the same as those prescribed for voters for members of the general assembly; that the registration should cease each year on the tenth day preceding the annual election of mayor and aldermen, etc. The day fixed for the corporate elections of the city--that is, the election of mayor and aldermen--is the first Wednesday in April, and in the present year said election took place on the 1st day of April. The clerk, in accordance with the ordinance mentioned, opened a registration book on or before January 1, 1891, and kept it open until March 21, 1891, and then closed it,--3 months and 16 days before the special election for public schools,--and after closing the book never reopened it for registration for said special election. The registration book, which was opened as above stated, had on it 406 registered voters. (A copy of the list was attached to the petition.) On June 3, 1891, the mayor and council passed an order calling an election for public schools, to be held on July 16, 1891, which was published in a public gazette and a copy of which was attached to the petition. When the day for the election came on, the mayor and council appointed two managers and clerks therefor, and turned over to the managers the registration book mentioned, and instructed them to permit no one to vote whose name was not on the registration book; and the managers, in the conduct of the election, were governed by the registration book and such instructions. A large number of voters who had become qualified between the 21st day of March, 1891, and 10 days before the election for public schools, were thus deprived of their privilege of voting, and practically disfranchised. The managers of the election, by their returns to the mayor and council, certified that 282 votes had been cast, of which 269 were for public schools and 13 against public schools. (Copies of tally sheets, voting lists, and returns of the managers were attached to the petition, together with a copy of an application made by petitioners to the mayor and council for copies of said papers and other proceedings.) On July 17, 1891, the mayor and aldermen, consisting of the mayor and three named aldermen, met to open the returns and declare the result of the election. The mayor opened the returns as follows: For public schools, 269 votes; against public schools, 13 votes. Two hundred sixty-nine votes did not constitute a two-thirds majority of the qualified voters of the city, as shown by the registration list, to wit, 406 used in the election; but the mayor and aldermen, by order then passed, directed the clerk of council to prepare a revised list of the qualified voters,--that is to say, to revise the list made for the mayor and aldermen election and used in the special election,--and report to them on the day following, and then adjourned to the next day. The mayor and council met pursuant to adjournment, and the clerk, in obedience to the resolution passed the day preceding, submitted the registration list mentioned above, but stated that he had ascertained that several of the names were names of minors, several on the day of the election were nonresidents, and several had been convicted of larceny. Among those so reported as minors was the name of Edgar Fannin, and among those reported as having been convicted of larceny was the name of Jake Mathews. At the special election both Fannin and Mathews voted in favor of public schools, (the number of the ballots cast by them being given,) and petitioners asked that they might have recourse to the ballots to establish this allegation. (A copy of the report of the clerk was attached to the petition.) The mayor and council, upon receiving the report, proceeded to revise the registration list by striking therefrom the names of Fannin, Griffin, Pennington, Douglas, and Pork, leaving upon the list 401 names, and then proceeded to declare that 269 votes were a majority of the qualified voters of the city, and that therefore public schools had received the requisite majority under the law. (A copy of the revision and order declaring the result was attached to the petition.) This action was illegal, and petitioners, or some of them, were present, and protested against it. At the time the board of aldermen consisted of only three members, whereas the law required four members, and for this reason the board was an illegal board. The managers of the special election, against the protest of some of the citizens and taxpayers, kept the polls open after 6 O'clock P. M., and at least five votes (naming the voters and the numbers of their ballots) were polled after that hour, and these votes were cast for public schools. Petitioners asked that they might have recourse to the ballots to...