Opinion
16746, 16755.
SEPTEMBER 12, 1949. REHEARING DENIED OCTOBER 13, 1949.
Petition for injunction. Before Judge E. R. Smith. Berrien Superior Court. May 25, 1949.
J. P. Knight and Jack Knight, for plaintiffs.
H. L. Jackson and Franklin, Eberhardt Barham, for defendants.
1. The Code (Ann. Supp.), § 58-1010.1, dealing with the manner in which an election may be held on the question of nullifying a previous election legalizing the sale of whisky in a county, specifically provides that the ordinary shall call such an election "upon a petition by at least 35 percent of the registered qualified voters" of the county. Among the prerequisites to the call of such an election are: (1) no election can be called within two years after the date of the declaration of the result of a previous election (Code, Ann. Supp., § 58-1010); (2) no election shall be called except upon the petition of at least thirty-five percent of the registered qualified voters, qualified to vote in the general election immediately preceding the presentation of the petition (Code, Ann. Supp., §§ 58-1003, 58-1010.1) — these two sections must be construed together ( Glass v. State, 75 Ga. App. 603, 44 S.E.2d 143); and (3) the election shall be held within thirty days from the filing of the petition, and notice of the election shall be published in the official gazette of the county once a week for two weeks preceding the election (Code, § 58-1003).
2. In Whittle v. Whitley, 202 Ga. 633 ( 44 S.E.2d 241), this court held that the requirements as to notice of such a special election was mandatory, and a failure to comply therewith vitiated the election; and this court further held that, in these circumstances, a petition by licensed liquor dealers, seeking to enjoin the ordinary from putting the result of such an election into effect, set forth a cause of action. The prerequisite as to a proper petition by thirty-five percent of the qualified registered voters is also mandatory; and it follows that a failure to comply with this mandatory prerequisite vitiates the election.
3. The cases of Skrine v. Jackson, 377, Ga. 377, and Caldwell v. Barrett, 73 Ga. 604, and any other case in conflict with the ruling here made, are, after notice to counsel for the parties in the present case and an opportunity to be heard, expressly overruled insofar as these decisions may hold that a court of equity is powerless to act where a mandatory prerequisite to the calling and holding of an election has not been complied with. In the opinion of the court, the principles announced and applied in Whittle v. Whitley, supra, present the sounder view.
( a) While, as a general proposition, courts of equity do not deal with contests of elections, and in matters touching the exercise of political functions the method of determining the result of an election pointed out by the legislature is ordinarily the one to be followed, the question in the present case is of a different character. It is not an election contest. It is an attack upon an election as being absolutely void, because of a lack of authority to hold the election due to noncompliance with a mandatory prerequisite. There is a marked distinction between mandatory provisions of the law in regard to the calling of an election and those which are merely directory to the officials in holding them. A substantial violation of mandatory provisions affects the validity of the election, while a failure of strict compliance with directory provisions of the law, or mere irregularities on the part of election officers, will not generally do so; and the latter are usually the subject-matter of contests. To hold that the action of an official in declaring the result of an election is conclusive and cannot be questioned in a court of equity, even where the official is clothed with no authority to hold the election because of a noncompliance with mandatory prerequisites, would lead to absurd results. For instance, in a special election on the question of legalizing the sale of liquor, an ordinary could, in disregard of all requirements, immediately, on his own initiative, call and hold a pretended election and announce that the county was "wet" or "dry." Would the courts, in such a case, be powerless to act, and would they of necessity be compelled to announce to the public that the action of the ordinary was conclusive, and the courts were without authority to declare the election void? We think not.
4. Applying the foregoing rulings, the petition in the instant case — alleging that, on a petition containing less than thirty-five percent of the registered voters, qualified to vote in the general election immediately preceding the presentation of the petition, the ordinary had called an election and declared the result to be against the sale of liquor, and praying that the order calling the election and the order declaring the result be decreed void, and that the ordinary be enjoined from putting the result of the election into effect — set forth a cause of action. and the court erred in sustaining the general demurrer thereto.
5. This being an equity case, facts transpiring after the filing of the petition, if germane to the original cause of action, may be alleged by amendment; and there was no merit in the defendants' demurrer to the second paragraph of the second amendment, based on the ground that the allegations as to arrests of the plaintiffs after the filing of the original petition were "irrelevant and immaterial for the reason that, whatever has transpired after the filing of plaintiffs' original petition in this case could not affect the plaintiffs' cause of action as of the date of the filing of such petition." The facts set forth in the amendment were germane to the cause of action stated in the original petition. See Taylor v. Chattooga County, 170 Ga. 607 ( 153 S.E. 741); Byrd v. Prudential Insurance Co., 185 Ga. 310. 314 (195 S.E. 403).
6. The trial judge did not err in overruling other grounds of special demurrer to the second amendment to the petition. Without deciding whether a failure to seek relief prior to the holding of an election, where the election is illegally called, would ordinarily bar the plaintiffs who had participated therein from attacking the election after it was held, we think that the facts alleged were sufficient as an excuse for a failure to act until after the election was held.
Judgment reversed on the main bill of exceptions; affirmed on the cross-bill. All the Justices concur.
Nos. 16746, 16755. SEPTEMBER 12, 1949. REHEARING DENIED OCTOBER 13, 1949.
E. E. Barrentine and others, alleging themselves to be citizens, residents, and taxpayers of Berrien County, Georgia, and owners of licensed retail liquor stores within the county, filed an equitable petition against Byrd Griner, as Ordinary of Berrien County, N. N. Hughes, as Sheriff of Berrien County, and Charles D. Redwine, as State Revenue Commissioner of Georgia. The petition alleged that, on October 29, 1948, a petition, purporting to contain the signatures of thirty-five percent of the registered voters of Berrien County, who were registered to vote in the last general election in the county, was presented to the ordinary, requesting the call of a special election for the purpose of nullifying a previous election legalizing the sale of alcoholic beverages in the county; that, based upon this petition, the ordinary did call a special election, which was held on November 26, 1948, resulting in a majority of the ballots being cast against legalizing the sale of intoxicating beverages.
The petition alleged that the election so called by the ordinary was illegal and void because the petition which was filed with the ordinary, and upon which the election was called, was not signed by thirty-five percent of the registered voters of the county, and contained less than thirty-five percent of the registered voters, in that (a) certain named persons who signed the petition signed in two different places, and their signatures were therefore duplications and were counted twice; (b) certain named persons whose names appeared on the petition were not on the registered-voters' list; (c) certain named persons, whose names appeared on the petition, did not sign the petition and did not authorize any one to sign for them; and (d) certain named persons, whose names appeared on the petition, were not residents of the county and were not qualified to vote in the general election immediately preceding the presentation of the petition.
The petition alleged that, when the illegally contained signatures, were eliminated, the petition contained only 1644 signatures, being less than thirty-five percent of the registered voters; and that the action of the ordinary in calling the election, and the election itself, based upon such petition, were void.
It was further alleged: that, subsequently to the election, the ordinary declared the result of the election to be against taxing and legalizing alcoholic beverages and liquors; that such declaration of the result of the election was illegal and void, for the reasons already alleged, and unless restrained from so doing, the ordinary will put into effect the result of the void election; that, unless restrained from so doing, the State Revenue Commissioner will revoke the liquor licenses of the petitioners, and unless restrained from so doing, the sheriff of the county, who is charged by law with the duty of enforcing the laws against the illegal possession, transportation, and sale of alcoholic beverages, will enforce such laws, based upon the void election; and that the petitioners have no adequate remedy at law.
The petition prayed for: (a) process; (b) a temporary injunction against the ordinary, restraining him from putting into effect the result of the election; (c) a temporary and permanent injunction against the State Commissioner of Revenue and the Sheriff of the county, and his lawful deputies, restraining them from in any manner interfering with or molesting or arresting the petitioners so long as they operated under the rules applicable prior to the election; and (d) that the election be declared void.
Charles D. Redwine, as Commissioner of Revenue, demurred to the petition upon the ground that it set forth no cause of action against him. This demurrer was sustained, and the ruling was unexpected to. Subsequently, on May 6, 1949, the plaintiffs filed an amendment, alleging in substance: that, under the Code, § 34-401, the Registrars of Berrien County are required to prepare, in every year in which a general election is required by law to be held, a list of the persons qualified to vote in the general election and, under § 34-404, the registrars are required to file with the clerk of the superior court a complete list of the registered qualified voters of the county for the general elections required by law to be held; that the registrars did file with the Clerk of the Superior Court of Berrien County such a list of qualified registered voters, containing the names of all voters qualified to vote in the general election immediately preceding the presentation of the petition, and such list contained the names of 6208 voters, a copy of the voters' list being attached to the petition as an exhibit; that the petition filed with the ordinary contained the alleged signatures of only 1679 alleged registered voters; that thirty-five percent of the registered qualified voters for the general election required by law to be held immediately preceding the filing of the petition with the ordinary is 2173, and even if all of the alleged signatures contained on the petition were valid, the petition requesting the call of the election did not contain thirty-five percent of the registered qualified voters. The amendment added further prayers: that the action of the ordinary in calling the election and his action in declaring the result of the election be decreed null and void.
On May 21, 1949, the plaintiffs filed a second amendment, alleging in substance: that, as soon as the petition requesting the call of the election was filed with the ordinary, the plaintiffs and their attorneys attempted to check the signatures on the petition against the qualified voters' list required by law to be filed with the clerk of the superior court; that the plaintiffs were informed by the clerk that the voters' list was in the possession of H. L. Jackson, attorney for the persons presenting the petition to the ordinary; that the plaintiffs went to said attorney and requested that they be allowed to see the voters' list, and they were given a copy of the voters' list for one militia district of the county, but the attorney denied having the voters' list for the remaining eight militia districts, stating to the plaintiffs and to the clerk of the superior court that he had returned the list to the clerk's office in his absence; that at the time these statements were made the attorney had in his possession and control the voters' list, and these statements were knowingly, falsely, and fraudulently made for the purpose of preventing the plaintiffs from having access to the voters' list until after the election; that, immediately after the election had been held, the attorney admitted that the voters' list had been in the office of Miss Bernice McMillan, where he had left them; that, because the attorney fraudulently withheld the voters' list from the plaintiffs until after the election, the plaintiffs were unable to check the petition filed with the ordinary against the voters' list until after the election, and within thirty days after the election had been held the plaintiffs finished checking on the persons whose names were alleged to be illegally upon the petition and the original petition in this case was then filed.
It was further alleged: that, since the filing of the petition, four of the plaintiffs have been arrested and charged with possessing more than one quart of tax-paid whisky in Berrien County; that the property (automobile) of one of the plaintiffs had been seized and condemnation proceedings instituted upon the ground that the automobile was being used to transport more than one quart of tax-paid whisky in Berrien County; and that the arrests and seizures are unlawful interferences with the persons and property of the plaintiffs, because the county is a "wet" county, said election being a nullity.
The amendment further alleged that the names of all persons appearing on the registered-voters' list, and who were qualified to vote prior to April 5, 1947, for members of the General Assembly from Berrien County, were qualified to sign the petition filed with the ordinary and should be counted upon the registered-voters' list.
A demurrer to the amendment was interposed by the defendants. The trial judge sustained the ground of demurrer attacking the portion of the amendment alleging that certain of the plaintiffs had been arrested since the filing of the petition, and overruled other grounds of demurrer attacking the remaining portions of the amendment.
The defendants renewed their original general demurrer to the petition as amended, and the trial judge sustained the demurrer. To this judgment the plaintiffs excepted, also assigning error on the judgment sustaining one ground of special demurrer to the last amendment. By a cross-bill of exceptions, the defendants excepted to the judgment overruling grounds of special demurrer to the last amendment filed by the plaintiffs.