Harrell v. Town of Whigham

• Decision Date: 18 February 1914
• Citation: 80 S.E. 1010,141 Ga. 322
• Parties: HARRELL ET AL. v. TOWN OF WHIGHAM.
• Court: Georgia Supreme Court

80 S.E. 1010

141 Ga. 322

HARRELL ET AL. v. TOWN OF WHIGHAM.

Supreme Court of Georgia

February 18, 1914

Syllabus by the Court.

The charter of the town of Whigham confers on the mayor and council of that municipality the authority to pass an ordinance providing for the registration of qualified voters so as to entitle them to vote at an election for the purpose of determining the question of whether the town shall issue bonds for certain municipal purposes.

Where statutory proceedings are brought for the purpose of validating municipal bonds, under Civil Code 1910, § 445 et seq., and are contested by citizens who become parties thereto and deny the truth of the substantial allegations of the petition, the burden is on the state, acting through its solicitor general, to prove the material facts which are requisite to obtain validation; and, where there is a total absence of such proof, it is error for the court to render judgment validating the bonds.

The ruling made in the preceding headnote is applicable where the petition filed by the solicitor general alleges sufficient facts to warrant validation of the bonds, and the answer filed by the municipality admits the facts alleged.

(a) The decisions in the cases of Epping v. Columbus, 117 Ga. 263, 43 S.E. 803, and Spencer v. Clarkesville, 129 Ga. 627, 59 S.E. 274, have been reviewed, and, in so far as they conflict herewith, are overruled.

Error from Superior Court, Grady County; Frank Park, Judge.

Application by the Town of Whigham to validate certain bonds and A Harrell and others contest. From the judgment, contestants bring error. Reversed.

S. P Cain, of Whigham, and W. J. Willie, of Cairo, for plaintiffs in error.

R. R Terrell, of Whigham, and R. C. Bell, of Cairo, for defendant in error.

HILL J.

The plaintiffs in error, as contestants in an application to validate certain bonds of the town of Whigham, except to the order of the court below validating the bonds. Two controlling questions are raised by the record for decision: (1) Does the charter of the town of Whigham confer on the mayor and council the authority to pass an ordinance providing for the registration of qualified voters so as to entitle them to vote at an election for the purpose of determining the question whether the town shall issue bonds for certain municipal purposes? (2) On whom is the burden of proof, in cases brought for the purpose of validating bonds under Civil Code, § 445 et seq?

1. By the charter of the town of Whigham (Acts 1896, p. 261, § 5) it is provided: "That all voters at any and all elections shall be qualified, provided by paragraph three of this charter, and have in addition thereto complied with all ordinances of registration that said mayor and councilmen may provide for registration of voters." Section 3 of the act provides: "That all male inhabitants who have attained the full age of twenty-one years and have been a resident of the town for twelve months just preceding the election and have paid all duties, taxes, fines, and forfeitures due said town shall be deemed and held eligible to hold any office in said town and that no person shall hold more than one office at any one time." These portions of the charter were unskillfully drawn, but the two sections, when read together, make it reasonably clear that the Legislature had in mind and intended to do two things: (A) To confer upon the mayor and council of the town of Whigham the power and authority to pass ordinances for the registration of qualified voters; and (B) to prescribe who of the male inhabitants of the town should be qualified to vote "at any and all elections" in the town. In pursuance of this charter provision, the mayor and council did pass an ordinance, reciting "that all male persons who have attained the full age of twenty-one years old, and have been bona fide citizens of the town of Whigham twelve months prior to all elections, and have paid all duties, taxes, fines, and forfeitures due the town, shall register their names, occupation, and age, with the clerk of the council each year upon a book showing the same prior to August 1st, 1913, and each year thereafter, shall be held to be legal voters at any and all elections," etc. It was further provided that "the managers of any and all elections shall be governed by the certified list of registered voters, and shall allow no one to vote whose name does not appear upon said certified list of voters," etc. It will be observed that section 3 of the act of 1896 provides who shall be eligible to hold any "office" in the town of Whigham, and section 5 of the act evidently intended to apply the same qualifications to "voters" as were required of those who held office; and while, as stated above, the act is not skillfully drawn, this was the evident purpose of the Legislature, and the mayor and council of the town have so construed it, and we think correctly. The ordinance is in substantially the same language as section 3 of the charter, which provides for the qualification of those who can hold office in the town of Whigham. We think, therefore, that, construing the two paragraphs of the charter together, they are not so vague and indefinite as to make them void for uncertainty, and that the language of the charter is broad enough to cover "all elections" held within the municipality, whether such elections are...