Davis v. Warde

• Decision Date: 07 June 1923
• Docket Number: 3625.
• Citation: 118 S.E. 378,155 Ga. 748
• Parties: DAVIS ET AL. v. WARDE ET AL.
• Court: Georgia Supreme Court

118 S.E. 378

155 Ga. 748

DAVIS ET AL. v. WARDE ET AL.

No. 3625.

Supreme Court of Georgia

June 7, 1923

Syllabus by the Court.

The general rule is that a stranger to a pending cause of action cannot intervene therein, unless it is necessary for his protection that he be allowed to become a party defendant to the litigation, and thus afford him an opportunity to resist the rendition of a judgment which would operate to his prejudice. But where an equitable cause of action is brought against certain defendants, praying injunction and other relief against them, and the latter answer averring that they are citizens and taxpayers affected by the result of the suit, and set up by way of cross-action matter of defense and praying affirmative relief against the plaintiffs, other defendants similarly situated may intervene and adopt the answer of the other defendants as their own, and be made parties defendant.

The act of the Legislature of 1922 (Acts 1922, p. 457), which is an act to amend the charter of the city of Albany, and the acts amendatory thereof, so as to provide another form of municipal government known as the "commission city manager form of government," is not obnoxious to article 3, § 7, par. 8, of the Constitution of Georgia (Civ. Code 1910, § 6437), which provides that "No law or ordinance shall pass which refers to more than one subject-matter, or contains matter different from what is expressed in the title thereof."

(a) Neither section 34 of the above-recited act nor the act as a whole is unconstitutional by reason of any objection urged against it.

Where the city charter of Albany provides for a board of canvassers, which has met and completed the count and declared the result of an election, such board of canvassers has exhausted its powers and cannot subsequently meet and rescind their former order and recanvass the votes and reverse their prior decision and declare a different result.

Where under the Charter of the city of Albany (Acts 1922, p. 457) an election was held to determine whether the "commission city manager form of government" should be adopted or rejected, and the result of the election was declared by a board of canvassers provided by the charter such declaration of the result of the election is prima facie correct; but where such election is attacked on the ground that the registration list, which was prepared and furnished the managers of the election, contained names of persons who were not authorized to register and to vote, a court of equity may hear evidence and determine whether such registration list contained names of persons who are not entitled to register and vote.

Under the Nineteenth Amendment to the Constitution of the United States the right to vote shall not be denied or abridged by any state on account of sex.

(a) Prior to the act of the Legislature of Georgia (Acts 1921, p 38,§ 2, par. 1) women were not required to pay a poll tax of $1 in this state.

(b) Under article 2, § 1, par. 3, of the Constitution of Georgia (Civ. Code 1910, § 6397) in order to entitle one to register and vote at any election by the people, such an one shall have resided in the state one year next preceding the election and in the county in which he offers to vote six months next preceding the election, and shall have paid all taxes which may have been required of such voter since the adoption of the Constitution of Georgia of 1877 that he may have had an opportunity of paying agreeably to law. Such payment must have been made at least six months prior to the election at which he offers to vote, except when such elections are held within six months from the expiration of the time fixed by law for the payment of such taxes.

(c) The expiration of the time fixed by law for the payment of such taxes in this state is December 20th of each year.

(d) The female voters, alleged to have been illegally registered in the present case, did not have six months from the expiration of the time fixed by law for the payment of such taxes in the year 1922.

Under the facts of this case, the court did not err in dissolving the restraining order and in granting the prayers of the cross-bill of the defendants.

Additional Syllabus by Editorial Staff.

Albany Charter (Acts 1917, p. 487) § 21, par. 2, requiring ordinances and resolutions to be signed by mayor or presiding officer and countersigned by clerk, is directory only, especially where order signed only by clerk was recognized by mayor and council as valid in seeking to rescind it.

Under the Albany Charter (Acts 1917, p. 464) § 6, par. 14, requiring mayor and council to receive election returns and declare result in accordance with certificate of managers, the mayor and council acts as canvassing board and cannot go outside official returns and receive evidence as to qualifications of voters, or declare result of any evidence except the official returns.

Error from Superior Court, Dougherty County; W. V. Custer, Judge.

Suit by J. A. Davis and others against G. G. Warde and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

Acts 1922, p. 457, amending the Albany charter to provide commission city manager form of government, held not to violate Const. art. 3, § 7, par. 8, relative to title and subject.

The petition of John A. Davis and others alleges that they are citizens and taxpayers of the city of Albany a municipal corporation, and they bring this suit on behalf of themselves and other citizens and taxpayers as may desire to be made parties thereto. They allege that the purpose of this suit is to enjoin the performance of certain threatened illegal and ultra vires acts of the defendants named herein, to wit, G. G. Warde and others, and to prevent confusion and inconvenience and loss of funds, which would result to the city of Albany and the citizens and taxpayers thereof if the threatened acts are not prevented by injunction, and to prevent a misappropriation of the funds of the city, to pay which the plaintiffs, and others in like situation, would be taxed.

After alleging, by way of inducement, certain matters of controversy between certain factions within the city of Albany, it is alleged that on August 21, 1922, a bill was passed by the Legislature (Acts 1922, p. 457) amending the charter of the city of Albany, changing the form of the city government from what is known as the mayor and council plan to the commission city manager form of government; that immediately after the passage of such bill there were numerous protests against its passage, etc.; that under certain provisions of the Commission City Manager Form of Government Act, hereinafter called the Commission Act, a board of police commissioners, which had been elected for a term of two years, would be abolished, and the chief of police and policemen would be elected by the city commission. Under the present charter of the city of Albany the chief of police is an officer elected for a period of two years, and the present chief was so elected in January, 1922. Under the Commission Act the chief of the fire department would become an employee to be elected by the new city commission, although under the terms of the present charter he is an officer of the city, elected for a term of two years, and was so elected in January, 1922. Under this act a recorder is to be appointed and qualified and paid a salary of $50 per month, which is an expense to the taxpayers of the city not authorized by the present charter; also a new officer, to wit, a city manager, would have to be elected by the new city commission, at an expense to the taxpayers. The present board of education, which is an independent body having charge of the city schools, would be abolished if the act becomes operative, and a new board of education would be elected by the new city commission. There are many other provisions which would cause a dismissal of other employees and would change the present method under which the city government is operated; the effect of all of which, if there should be any doubt of which form of government is now legal, would throw the affairs of the city and the schools into hopeless confusion.

Pursuant to the terms of the Commission Act and School Act there was held in the city of Albany, on December 4, 1922, an election for the purpose of determining whether either or both of said acts should be ratified oy a vote of the people of the city; the election being held at an election for choice of councilmen of the city, next occurring after the passage of the act, and being held under the same rules and regulations and requirements of voters and registration as existed at the time of the passage of the acts for the holding of general city elections and for the certification and returns of the same, the polls being open for the registered qualified voters to vote on said issues on said date. The result of the election was certified to the mayor and council by the managers of the election, as required by the city charter, and as so certified showed the following votes were cast for and against each of said propositions in said election, to wit: "For commission city manager form of government" received 896 votes; "Against commission city manager form of government" received 1,173 votes; "For new school board" received 883 votes; "Against new school board" received 1,200 votes. After the returns of the election were delivered by the managers to the clerk of council of the city, the mayor and council at their meeting after the election held on the 12th day of December, 1922, received said returns from the clerk of council, but did not at that time receive any certificate of the clerk of council, or any other official information showing what was the number of registered...