Mcmahon v. The Mayor

• Decision Date: 30 September 1880
• Citation: 66 Ga. 217
• Parties: McMahon et al. vs. The Mayor, etc., of Savannah.
• Court: Georgia Supreme Court

66 Ga. 217

McMahon et al. vs. The Mayor, etc., of Savannah.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1880.

Municipal corporations. Constitutional law. Elections. Before Judge Fleming. Chatham Superior Court. December Term, 1880.

Reported in the decision.

Geo. A. Mercer; A. P. & S. B. Adams, for plaintiffs in error.

J. R. Saussy; H. C. Cunningham, for defendants.

Speer, Justice.

McMahon et al. filed their bill in Chatham superior court, alleging that they are citizens of the city of Savannah and of the county and state aforesaid, are tax-payers of said city, and some of them owners of taxable property in said city to a large amount.

They also allege that they are duly qualified and entitled to vote at elections for mayor and aldermen of said city. They show that the constitution of the state of Georgia declares that every male citizen of the United States, twenty-one years of age, who has resided in the state one year next preceding the election, and six months in the county in which he offers to vote, and shall have paid all taxes required of him, and which he may have had an opportunity of paying agreeably to law, except for the year of the election, shall be deemed an elector. That said constitution further provides, that the general assembly may provide from time to time, for the registration of all electors, that laws of a general nature shall have uniform operation, and that no special law shall be enacted in any case for which provision has been made by an existing general law, that local and private acts passed for the benefit of cities, not inconsistent with the supreme law nor with said constitution, shall have the force of statute law, and that all legislative acts in violation of said constitution are void.

Complainants allege that the mayor and aldermen of the city of Savannah, claim the right to add to the qualifications of an elector provided by the constitution of Georgia as aforesaid, the additional qualifications for an elector, at general elections for mayor and aldermen insaid city that such voter shall have made all legal returns required by the ordinances of said city, and shall have been registered according to law.

Complainants further allege that said defendant, through its officers and agents, and particularly through its clerk of council, is now engaged in enforcing against your orators, and other citizens and tax-payers, said illegal qualifications and requirements, claiming the right to do so under the charter of said city, as amended by an act of the general assembly of Georgia, approved August 7th, 1872; said act provides that said clerk shall open a list for the registration of voters, to remain open from the first Monday in July until the first Monday in December, till 2 o'clock, p.m. It is made the duty of such clerk, upon the application in person, and not by proxy, of any person entitled to vote in said city, as required by said city charter, and by said defendant, to register the name of such person, age, occupation or business, and place of residence; and further, the applicant shall pay to such clerk, for the city treasurer, the sum of one dollar in lieu of poll-tax, and shall receive from said clerk a certificate of his registration, upon the production of which he shall be entitled to vote, and not otherwise. And further, said clerk may, in any case, administer an oath to the applicant, touching his right to be registered. Said clerk is required to publish a list of the names in one of the gazettes of the city of Savannah; also, to affix said list at the Court House door, and Exchange, and to furnish the magistrates presiding at the election for mayor and aldermen, a list of the names as aforesaid.

And said magistrates are authorized to administer to any person attempting to vote an oath containing, among other things, the averment that such voter has duly registered as aforesaid, which it is alleged differs essentially from the oath prescribed for voters by the constitution of Georgia. It is further alleged that said registration and production of said certificate are made essentialqualifications of the right to vote, and that any person voting or attempting to vote, who is not so qualified is subjected to a criminal prosecution, and subjected to be committed instantly, by the presiding magistrate, to the common jail.

It is further charged that said election law is manifestly inconsistent with the constitution of Georgia, and prescribes qualifications for electors not authorized in said constitution, and that said provisions have been repealed by said constitution; and said law will disfranchise lawful voters under the constitution, and deprive them of their right to vote.

Notwithstanding the facts set forth, the said defendants and their clerk, are now engaged in carrying out said illegal requirements, and insist that before any legal voter under the constitution of Georgia can be allowed to vote at the approaching election for mayor and aldermen, to be held in said city of Savannah on the third Tuesday in January next, he must first register his name, pay a registration tax, be prepared to exhibit his certificate of registration, and to take the oath as aforesaid. It is further alleged that the defendants cannot legally collect the poll tax and pay the same into the city treasury. Complainants insist that they and all other voters and taxpayers, will be subjected to annoyance and expense of a criminal prosecution, if they insist upon their rights as electors under said constitution; that the said officers of said city who superintend and manage the election are without means, and could not respond in damages to your orators for refusing to receive their votes.

Further, it is averred, to prevent a multiplicity of suits, and to obtain adequate relief and protection, a resort to equity is necessary.

That they are property owners and tax-payers, interested in the legal and proper appropriation of all moneys in the city treasury; that defendants have no right to usepublic moneys contributed by tax-payers to carry out any such illegal act; that carrying out this act is causing great expense in publishing, printing, purchasing books, etc., and that large sums are being misappropriated for this illegal purpose.

Complainants charge an open violation of said law of registration—that many of said applicants do not, and are not required to, pay said clerk the registration tax; certificates are not being delivered by said clerk as required by said act, but parties desiring to control the result of the coming municipal election have been and are still presenting names of persons alleged by them to be qualified voters, and said clerk is filling up certificates of registration, without requiring them to pay the registration fee, with the view and intention of delivering the same at some future day, prior to said election, not to said applicants, but to parties so furnishing said names. It is alleged said practice is contrary to the manifest spirit and intention of said act, and leads to gross frauds and to the defeat of the popular will.

The prayer is not only for a subpœna, but also for an injunction directed to defendants, its officers and agents, and to the clerk, enjoining them and each of them from further carrying out, or attempting to enforce or carry out in any way, said illegal election law and system of registration;...