Davis v. City Council of Dawson

• Citation: 17 S.E. 110,90 Ga. 817
• Parties: DAVIS et al. v. CITY COUNCIL OF DAWSON.
• Decision Date: 27 February 1893
• Court: Supreme Court of Georgia

17 S.E. 110

90 Ga. 817

DAVIS et al. v. CITY COUNCIL OF DAWSON.

Supreme Court of Georgia

February 27, 1893

Syllabus by the Court.

1. It was not necessary, under that provision of the act of September 1, 1891, amending the charter of Dawson, which declares that all male citizens of this state residing in the city who are entitled to vote for members of the general assembly shall be entitled to vote at an election for municipal officers, that one otherwise qualified and offering to vote should have registered with the tax receiver of Terrell county (which embraces the city of Dawson) in the manner prescribed by the act of September 29, 1887. The local act for the registration of voters in Terrell county applies only to elections for the officers designated in that act and does not apply to municipal elections in the city of Dawson. That city having a system of registration for municipal elections, compliance with its provisions would be necessary to entitle one to vote in such elections, but it is not the purpose of the law to have two distinct and separate systems of registration operating upon the same election. The word "entitled" used in the phrase "entitled to vote for members of the general assembly" should be construed as meaning "qualified;" and "registration adds no qualification to voters, but only serves to identify them as persons qualified to vote." It follows that the managers of the election improperly rejected the ballots of persons duly registered for the city election, and otherwise qualified to vote, simply because they had not registered in accordance with the provisions of the act last mentioned.

2. Any citizen and taxpayer of an incorporated city has such an "interest" in the office of alderman as would entitle him to institute a proceeding, under section 3203 of the Code, against one assuming to hold that office and exercising its functions, for the purpose of inquiring into and determining his legal right thereto. A defeated candidate also has an interest in the office, and while he may not attack the election on any ground which, if true, would make it totally illegal and void, may, though not himself claiming the office, dispute the result of the election, and proceed by quo warranto to have it set aside, and the office declared vacant, upon the ground that the managers of the election, by unlawfully rejecting the ballots of many persons entitled to vote, defeated his election, a result which would not have occurred if those ballots had been received and counted.

3. The petitioners, as citizens and taxpayers, having a remedy at law by quo warranto proceedings to inquire into the right of the defendants to hold the offices in question, and it also appearing from the allegations of their equitable petition that they were defeated candidates, who might, as such, if they had so chosen, have used this remedy, the court below rightly denied the injunction and other relief prayed for. The uniform procedure act of 1887 expressly excepts from its operation the remedy by quo warranto.

Error from superior court, Terrell county; J. H. Guerry, Judge.

Action by W. H. Davis and William H. Bishop against the city council of Dawson to determine their title to office, and for an injunction. From an order denying the injunction and relief prayed for, plaintiffs bring error. Affirmed.

Hoyl & Parks, and J. W. Walters, for plaintiffs in error.

J. D Laing and Bacon & Miller, for defendants in error.

LUMPKIN J.

1. The charter of the city of Dawson, as amended by the act of September 1, 1891, (Acts 1890-91, vol. 2, p. 526,) provides that "all male citizens of this state residing within the corporate limits of said city who shall be entitled to vote for members of the general assembly of this state, and who have resided within said city for at least thirty days prior" thereto, shall be entitled to vote in all elections for municipal officers held in that city. By an act approved September 29, 1887, (Acts 1886-87, p. 738,) "providing for the registration of qualified voters in Terrell county," (in which county the city of Dawson is situated,) "the tax receiver of said county, during the year 1888, and biennially thereafter, or during each year as elections are held for governor, members of the general assembly, members of congress and presidential electors," was directed to keep a registration book, in which all persons otherwise qualified were required to have their names duly entered, in order to be entitled to vote at certain elections in that county. Construing the charter of the city in connection with this act, the managers at the last municipal election held in the city of Dawson were of the opinion that, to have the right to vote at that election, it was necessary to have previously registered with the tax receiver; and disregarding a registration list which had been made and kept under a city ordinance, passed in pursuance of the charter, they rejected the votes of all electors whose names did not appear on the county's registration book. The effect of this action on their part, it is claimed by petitioners, was to disfranchise a large number of persons otherwise qualified to vote whose ballots, had they been received and counted, would have entirely changed the result of the election. The issue thus presented is not a new one. In Kaigler v. Roberts, 89 Ga. 476, 15 S.E. 542, the proper construction to be placed upon the local registration law for Terrell county was one of the questions before this court for determination, and it was expressly ruled that the act of September 29, 1887, had no application whatever to the election upon the question of issuing bonds to build a court house, which was then under consideration, but applied only to elections for the officers specifically designated in that act. This decision we are now prepared to affirm and sanction. That the amended charter of Dawson requires, as one of the essential qualifications of an elector, that he "shall be entitled to vote for members of the general assembly," presents no sufficient reason for holding that the act of 1887 applies to the case at bar. True, that act bears date prior to the act of September 1, 1891, amending the city's charter; but, when the purpose for which the latter act was passed is considered, it is manifest that the legislature neither contemplated, nor had the slightest reference to, the then existing local registration law for Terrell county. The only objects of the amending act were to increase the number and change the terms of aldermen, provide compensation for the city's officers, and, without regard to the question of registration, declare who should be considered as qualified to vote in elections held for municipal officers. Indeed, not the slightest allusion is made to the subject of registration, it being the evident purpose and intention of the act that the system of registration then operative in that city under its charter should be allowed to continue in force. Charter of the City of Dawson, (Acts 1882-83, p. 404.) It is in direct opposition to the policy of the law that two separate and distinct systems of registration should operate upon the same election; and there is no reason for holding that the legislature, in amending the charter of Dawson in the respects indicated, had any reference to the registration law governing county elections. The language employed in prescribing what should constitute the qualification of voters being used without reference to the subject of registration, the term "entitled," as used in the phrase quoted, is synonymous with, and should be construed as meaning the same as, "qualified." As ruled in Mayor, etc., v. Wade, 88 Ga. 699, 16 S.E. 21, "registration adds no qualification to voters, but only serves to identify them as persons qualified to vote;" and it follows that the managers of the election improperly rejected the ballots of persons duly registered for the city election, and otherwise qualified to vote, simply because they had not registered in accordance with the provisions of the act of September 29, 1887, supra, applicable alone to certain elections of federal and state officers therein specified.

2. The petition in this case was brought by W. H. Davis and William H. Bishop, describing themselves as "citizens of the city of Dawson, said state, and taxpayers therein." In passing upon their right to prosecute the present action, two questions arise: (1) Whether an action will lie at the...