King v. Board of Education of Richmond County
| Decision Date | 14 April 1932 |
| Docket Number | 8289. |
| Citation | 164 S.E. 52,174 Ga. 685 |
| Parties | KING et al. v. COUNTY BOARD OF EDUCATION OF RICHMOND COUNTY et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where six Supreme Court justices divided equally in opinion judgment of Court of Appeals under review stood affirmed by operation of law.
This case being for decision by the entire bench of six justices who are equally divided in opinion, RUSSELL, C.J., and GILBERT and HINES, JJ., being of the opinion that the judgment of the Court of Appeals should be reversed, and BECK, P.J., and ATKINSON and HILL, JJ., being of the opinion that the judgment of the Court of Appeals should be affirmed the judgment stands affirmed by operation of law.
Certiorari to Court of Appeals.
Petition by the County Board of Education of Richmond County and others to validate a bond issue, in which H. B. King and others intervened. Judgment for petitioners was affirmed by the Court of Appeals (42 Ga.App. 563, 156 S.E. 710), and interveners bring certiorari.
Affirmed.
Wm. H. Fleming and Wm. M. Howard, both of August, for plaintiffs in error.
Geo. Hains, Sol. Gen., Hull, Barrett & Willingham and Pierce Bros., all of Augusta, and John M. Graham, of Atlanta, for defendants in error.
The views of RUSSELL, C.J., and GILBERT and HINES, J J., as expressed by RUSSELL, C.J., are as follows:
1. As a general rule, "No election shall be defeated for non-compliance with the requirements of the law, if held at the proper time and place by persons qualified to hold them, if it is not shown that, by that non-compliance, the result is different from what it would have been had there been proper compliance." Civil Code 1910, § 126.
2. However, "While it is true that mere irregularities in the conduct of an election, where the will of the voter has not been suppressed or changed, will be disregarded, yet a succession of unexplained irregalurities and a disregard of law on the part of the officials is sufficient to deprive the ballot-box and the returns of the credit to which they are otherwise entitled, and shift the burden upon the party maintaining the legality of the official count." McCrary on Elections, §§ 582, 583; Webb v. Bowden, 124 Ark. 244, 187 S.W. 461, Ann.Cas. 1918A, 60.
3. When the result of an election has been shown to be so tainted with fraud that the truth cannot be deducible therefrom, the entire poll should be rejected. (a) A fraud committed by the officers holding an election, or with their knowledge and connivance, stands upon a different footing from fraud committed by other persons. In such a case, frauds upon the ballot box even though not sufficient to affect the result, may destroy the integrity of the returns made by the managers, so as to deprive them of their standing as prima facie proof of the result of the election, and thus require additional evidence to establish the result. (b) No one is permitted to benefit from wrongdoing purposely committed for his benefit. And so, where in an election contest the prima facie probative value of the return of the managers has been destroyed, the burden of proof shifts to those interested in showing that the result as declared was not affected by the fraud and is the true result. (c) This may be done, if possible, by purging the polls and the separation of the legal votes from the fraudulent and illegal votes, so as to preserve the right of the legal voters. Where the circumstances are such that a separation is impossible, the law as well as the interest of society demands that the election be declared void. (d) In this case, as appears from the judgment of the judge of the superior court, "Persons on the outside, in some instances by the permission and acquiescence of managers on the inside of the voting booths, deposited votes in the names of absent qualified voters; in some instances this was done by the managers themselves." The record shows that subp nas were issued for hundreds of persons whose names appeared upon the voting list of this election, who could not be found by the officers for the purpose of serving them with subp nas issued at the instance of the interveners. (e) Though the burden was shifted to the petitioners by evidence in behalf of the interveners, which obliterated the potency and competency of the returns of the election as a prima facie case, no testimony was introduced on the part of the petitioners for the purpose of showing that the bonds should be validated because they had received the vote required by law.
4. The Court of Appeals erred in affirming the judgment of the superior court of Richmond county, for the reason that the evidence demanded a finding that the election held for the purpose of authorizing an issue of $1,000,000 of bonds was void.
This case is one of contest of an election, which arose upon a petition brought to validate an issue of $1,000,000 in bonds to be issued by Richmond county for school purposes. The plaintiffs in error filed an intervention setting up that the return of the managers of the election, for reasons stated, did not truly report the result of the plebicite, and for this reason the vote in favor of the issue of the bonds was not sufficient, and the proposed issue of bonds should not be validated. It was agreed that the trial judge, without a jury, should pass upon all issues of fact as well as law. At the conclusion of the trial, the court passed an order adjudging that the bonds had received the requisite majority of votes to require the validation of the bonds. The interveners carried the case by bill of exceptions to the Court of Appeals, where the judgment of the lower court was affirmed. The plaintiffs in error in due course filed in this court a petition for certiorari. In view of the gravity and importance of the questions involved in the litigation, the court saw fit to grant the writ of certiorari, and so the case is before us for review. The evidence in the trial was so voluminous that it will not be set forth in detail, though it has been carefully considered. In addition to many facts stated in the decision of the Court of Appeals (42 Ga.App. 563, 156 S.E. 710), others will be referred to in this opinion. Much has been said in argument as to the fact that the issue of bonds here involved is for school purposes. The education of our youth is a matter of deepest concern and paramount importance to every parent as well as to every well-wisher of his country. However, in a country governed by democratic ideals and dependent for its very existence upon the perpetuation of republican institutions in all their strength and purity, and where the taxpayers are to be subjected to extremely heavy burdens, it would seem that the election which creates or promotes the schools is primarily of vastly more importance than the support of any object which it is the duty of the government to promote. In an ideal democracy, pure elections are the mudsills on which the entire superstructure of good government must be built. If the foundations are based on sands or are laid in mire, the waters of popular indignation, falling like rain in a cloudburst, will undermine and sweep away the structure which has been foolishly based on foundations insecure and unstable.
In the trial in the superior court, the learned judge properly went to extreme lengths in affording the parties litigant ample time and opoprtunity to produce evidence in support of their intervention. His conduct in this respect entitles him to the highest commendation. However, we are of the opinion that his judgment was error, and the judgment of the Court of Appeals in affirming the result of his conclusions was likewise erroneous. We think that one ingredient of this error arises from a misapprehension of the rule as to the burden of proof in cases of contested elections. It is well settled, of course, that the returns and consolidation of the managers in an election such as we have before us are taken prima facie to be true, and any one who wishes to pick a flaw of any kind in such returns must assume the burden of proof of rebutting the prima facie case made by the returns of the managers. But when evidence has been submitted by the contestant (interveners in this case) which demands a finding that fraud has corrupted the election as well as the returns of the managers, and involved the result of the election in such doubt that no man can say what was the actual result, the prima facie verity of the return of the managers is destroyed. Then the burden of proof is shifted; and, unless the party who has apparently gained the election can rebut the showing by the contestant, he will not be permitted to enjoy the benefits of the wrongs done in his favor merely because, through the instrumentality of the managers and others, he has succeeded in so concealing and obliterating his tracks that the exact result cannot be ascertained. Substantially, the decision of the Court of Appeals, which the petitioners in certiorari seek to set aside, reverses the judgment of the trial judge upon the evidence, but affirms his judgment as a whole, upon the doctrine that the interveners failed accurately to show a sufficient number of illegal votes to have been cast to change the result of the election declared by the managers. Cases have been cited in support of that well-recognized principle. If the decision in this case rested upon any one, and only one, of such defects as the failure to have proper managers at a precinct, or that they were not sworn, or to have managers who had not been selected by law, or failure to make an absolutely correct return, these requirements might be held to be merely directory. As it was apparent in all of the cases cited that there was no appearance of fraudulent...
To continue reading
Request your trial