Rentz v. City of Moultrie

• Decision Date: 09 January 1974
• Docket Number: No. 28407,28407
• Citation: 231 Ga. 579,203 S.E.2d 216
• Parties: Kenneth RENTZ et al. v. CITY OF MOULTRIE et al.
• Court: Georgia Supreme Court

Page 216

203 S.E.2d 216

231 Ga. 579

Kenneth RENTZ et al. v. CITY OF MOULTRIE et al.

No. 28407.

Supreme Court of Georgia.

Jan. 9, 1974.

Fallin & Kirbo, Billy G. Fallin, Moultrie, for appellants.

Whelchel & Whelchel, Hoyt H. Whelchel, Jr., Moultrie, for appellees.

Syllabus Opinion by the Court

JORDAN, Justice.

A petition was filed with the Mayor of Moultrie, Georgia on March 19, 1973, seeking a special election to determine if a majority of those voting in such an election would be in favor of permitting the sale and distribution of alcoholic beverages and liquors in the City of Moultrie. The mayor, after verifying the signatures on the petition to insure that it contained the names of the required 35% of those eligible to vote in the preceding general election, issued a call for the special election to be held on May 16, 1973. Notice of the election was published in the County Gazette once a week for two weeks prior to the election, and the election was held as scheduled on May 16, 1973. The referendum passed by a slight majority, and the appellants then filed a petition in the Superior Court of Colquitt County asking that the court enjoin the City of Moultrie from legalizing, controlling and taxing alcoholic beverages and further to have the referendum declared null and void. After hearing evidence of certain irregularities in the calling of the election, the trial court ruled adversely to appellant's position, and it is from this ruling that appellant appeals. Held:

1. The heart of appellant's complaint is embodied in a construction of Code Ann. § 58-1003, as amended, which provides that upon a petition, signed by at least 35 percent of the registered voters qualified to vote at the general election immediately preceding the presentation of the petition, being filed with the mayor of any municipality, he shall call a special election to be held within 30 days from the filing of such petition, and shall publish the notice of the call of the election in the official gazette of the county once a week for two weeks preceding the election.

Appellant first argues that the petition presented to the mayor on March 19, 1973, did not contain valid signatures of the required 35 percent of the registered voters when presented. The fact that the mayor called the election determines at least prima facie that those signatures on the petition were of the class and were of sufficient number to comport with the requirement of the statute for the purpose of calling the election. Committee for New Cobb County Revenue v. Brown, 228 Ga. 364, 370, 185 S.E.2d 534; Vornberg v. Dunn, 143 Ga. 111(2), 84 S.E. 370; Williams v. Gould, 203 Ga. 96, 98, 45 S.E.2d 218. The trial court determined that the appellant 'failed to show by a preponderance of the evidence that there were less than thirty-five (35) percent of such qualified voters who had signed the petition at the time same was filed with the mayor . . .' There is sufficient evidence in the record to support the trial judge's conclusion and in situation such as this the judgment of the trial court will not be disturbed. Kennesaw Guano Company v. Miles & Co., 132 Ga. 763, 64 S.E. 1087; Mallette v. Mallette, 220 Ga. 401, 139 S.E.2d 322.

2. The appellant also contends that 'The election was void as it was not held as required by Code Ann. § 58-1003 within 30 days after the filing of the petition with Mayor W. B. Withers.' With this contention we do not agree. The appellants sat by and made no protest as to the timeliness of the election until after the votes were tallied and they found themselves in a losing situation. This court has made but one exception to the 30 day requirement, said exception being found in Committee for New Cobb County Revenue v. Brown, supra. In that case the election was delayed due to litigation prior to the casting of ballots, and we held that under such circumstances the litigation tolled the 30 day requirement, saying that 'The purpose of Code Ann. § 58-1003 is to permit such elections to be held, not to provide technicalities by which a popular vote may be thwarted.' Where the only protest made springs forth after the election takes place we have held that 'All provisions of the election law are mandatory if enforcement is sought before election in a direct proceeding for that purpose; but after election all should be held directory only, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote, or to the ascertainment of the result, unless the provisions affect an essential element in the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of an election or that its omission renders it void.' Tate v. Morley, 223 Ga. 36, 153 S.E.2d 437; Adair v. McElreath, 167 Ga. 294, 145 S.E. 841. In the case before us now the appellants knew from April 17, 1973, to May 16, 1973, that the 30-day requirement would not be complied with, yet they took no...