Stewart v. Cartwright
| Decision Date | 05 September 1923 |
| Docket Number | 3596,3612. |
| Citation | 118 S.E. 859,156 Ga. 192 |
| Parties | STEWART v. CARTWRIGHT ET AL. STEWART v. SEABROOK ET AL. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Section 22 of the act of 1914 (Acts 1914, p. 1162), referring to elections in the city of Savannah for mayor and aldermen and a recorder, declares: Held that under application of this statute, where the clerk of council prepares an official ballot that contains the name of only one candidate for mayor, such ballot may be supplemented by scratching the name of the candidate for mayor thereon, and substituting the name of a different person as the voter's choice for mayor, without destroying the official character of the ballot or rendering the vote cast through its instrumentality unlawful.
In section 6 of the act of 1914 (Acts 1914, p. 1172), relating to primary elections, it was provided that a nominee at a primary election held in accordance with the act might become a candidate in the next general election, and that a person other than such nominee might become an independent candidate for mayor; but the act restricted the right to become such independent candidate to persons who should, within five days before the general election, file with the clerk of council a petition indorsing his candidacy, signed by not less than one-third of the persons registered and qualified to vote in the general election, and declared that no vote shall be counted for an independent candidate who had not complied with such conditions, and that, if it should appear at any time that the petition did not contain the requisite number of names of registered qualified voters indorsing his candidacy, such independent candidate should be ineligible and his election void. Held that, under application of this law and the provisions of section 22 of the election law quoted in the preceding note, in order to show illegality of votes that were cast for an independent candidate, or that his election was void on the ground that the petition which he filed with the clerk of council was not indorsed by the requisite number of persons registered and qualified to vote for mayor at the general election, it is essential that the complainant shall show the fact that the petition filed with the clerk of council did not have the requisite indorsement. (a) The facts alleged in the petition for mandamus were insufficient to show noncompliance with the requirements of the statute as to the number of persons indorsing the petition, and consequently insufficient to prevent the counting of votes cast for such independent candidate, or to render his election void on the ground of a failure to comply with the statute in that respect.
It not appearing that the votes cast for the respondent were unlawful upon any ground relied on, the judge did not err in refusing the mandamus nisi or in refusing a rule to show cause, etc., in the ancillary petition for injunction.
The controlling questions in both cases are disposed of by rulings in the preceding notes; and it is unnecessary to deal with the motion to dismiss the bill of exceptions in the injunction case, or with other questions not specifically decided.
Additional Syllabus by Editorial Staff.
If statute is subject to two constructions, one of which would make it constitutional and the other of which would render it unconstitutional, the former will be adopted.
Under Const. art. 2, § 1, par. 2, which, as modified by Const. U.S. Amend. 19, entitles every citizen having specified qualifications to vote in any election the right to vote, cannot be absolutely denied or taken away, and the Legislature cannot prescribe form of official ballot which will deny voter the right to vote for whomsoever he pleases.
Error from Superior Court, Chatham County; R. G. Dickerson, Judge.
Mandamus proceeding by Murray Stewart against Edward Cartwright and others, and ancillary suit by Murray Stewart against P. E. Seabrook and others. Judgment against plaintiff in each case, and he brings error. Affirmed.
In mandamus proceeding to compel election managers and board of canvassers to exclude all ballots cast for an independent candidate, petition held insufficient to show that petition filed by such candidate with clerk of council was not indorsed by requisite number of registered and qualified voters.
An election for mayor of the city of Savannah was held on January 9, 1923. There were two election managers at each polling place, whose duty it was to conduct the election, receive the ballots cast, and, at the close of the polls, count the votes, and make returns to a board of canvassers consisting of the judge of the superior court, the judge of the city court, and the ordinary of the county. It was the duty of the board of canvassers to receive and publicly consolidate the returns from the managers at all the polling places in the city, and publicly announce the result of the election, and to file the consolidated returns as made by the canvassers in the office of the clerk of council as an official paper of the city. Hon. Murray Stewart was a candidate for mayor, whose right to be such candidate was never questioned. He received a stated number of votes. Votes were also cast for Hon. Paul E. Seabrook; but his right to be a candidate and the lawfulness of all votes cast for him were drawn into question. Controversies arose between the managers at the several voting places as to their duty to count any ballots cast for Seabrook, and, as a consequence, one of the two managers at each place refused to make any count or return of the ballots cast at his place, and the other manager proceeded alone, and made a count and return of all ballots cast at such place. Two of the canvassers received and consolidated the returns so made by one manager from each voting place, and declared Seabrook elected. The other canvasser refused to participate in the reception of the returns signed by one manager and declaration of the election of Seabrook, but all the canvassers signed the consolidated returns and filed them with the clerk of council. On January 12, 1923, Stewart presented to the judge of another circuit his petition for mandamus against all the election managers and the entire board of canvassers, to compel the former to count the ballots and make returns from the several places of election, on the basis of counting all ballots cast for Stewart and excluding all ballots cast for Seabrook, and to compel the board of canvassers to receive and consolidate such returns, declare the result, and file with the clerk of council consolidated returns that would show Stewart's election. The judge to whom the petition was presented rendered the following judgment, without any demurrer or answer having been filed, or introduction of any evidence:
The petitioner excepted to this judgment. The bill of exceptions was certified by the judge on January 17, 1923. The term for which the mayor was elected would not begin until January 22, 1923, and Seabrook was not exercising any of the duties of mayor at any time prior to the last-mentioned date. Contemporaneously with the mandamus proceeding, Stewart, as incumbent of the office in virtue of a prior election, with statutory right to hold over until his successor should be elected and qualified, instituted an ancillary suit against the board of canvassers and Seabrook, seeking cancellation of the consolidated returns filed with the clerk of council, and the writ of injunction to prevent Seabrook, until the issues involved in the mandamus case should be determined, from taking the oath of office and interfering with Stewart in his discharge of the duties of the office. In an order similar to that quoted in the mandamus suit the judge entered a judgment refusing to grant a rule nisi. The petitioner excepted, and assigned error on this judgment. Both cases were argued together in the Supreme Court. Other facts sufficiently appear in the opinion.
Shelby Myrick, John J. Bouhan, A. A. Lawrence, D. S. Atkinson, and E. A. Cohen, all of Savannah, for plaintiff in error.
Adams & Adams, Lawton & Cunningham, Hitch, Denmark & Lovett, McIntire, Walsh & Bernstein, Oliver & Oliver, M. A. O'Byrne, Anton P. Wright, and Edward C. Brennan, all of Savannah, for defendants in error.
R. L. Colding and H. Mercer Jordan, both of Savannah, for Stewart managers.
1. Two local statutes were approved on August 12, 1914, providing a method for electing a mayor and aldermen and a recorder for the city of Savannah. One is the Primary Law (Acts 1914, p. 1172), and the other the Election Law (Acts 1914, p. 1162). Section 23 of the Election Law provides:
"That all...
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