City of Madison v. Wade | Cases | Westlaw

The following is the official report:

The petition made, in brief, the following allegations: The mayor and council are about to elect a board of education and rent or build schoolhouses in the city, and provide for the establishment of free schools, and thereby incur a large expense, which must necessarily increase city taxation so that it will become burdensome to the citizens. They are proceeding to do this under an election held on July 16, 1891, which election was held under the provisions of an act approved October 25, 1889, entitled “An act to establish a system of public schools in the city of Madison, Georgia; to levy and collect a tax for maintaining and supporting said schools; to authorize the county school commissioners of Morgan county to pay over to the board of education of said public schools, for the use of said public schools, such part of the state school fund as may be their just pro rata share thereof; and for other purposes therein named.” By an act approved February 1, 1877, entitled “An act to provide for the registration of voters in the corporate elections of the city of Madison and enforce the same,” the charter of Madison was amended so as to authorize the registration of voters in the corporate elections of the city. By this last–named act the mayor and aldermen were empowered and authorized to enact such ordinance, providing for the registration of voters in the corporate elections of the city, as would, in their discretion, conduce to the interest and peace of the people. In accordance with the act the mayor and council adopted an ordinance providing that on the 1st of January the clerk of the city council should open a book for the registration of voters, which book should be the evidence of a voter's having registered; that the qualifications for registration should be the same as those prescribed for voters for members of the general assembly; that the registration should cease each year on the tenth day preceding the annual election of mayor and aldermen, etc. The day fixed for the corporate elections of the city—that is, the election of mayor and aldermen—is the first Wednesday in April, and in the present year said election took place on the 1st day of April. The clerk, in accordance with the ordinance mentioned, opened a registration book on or before January 1, 1891, and kept it open until March 21, 1891, and then *22 closed it,—3 months and 16 days before the special election for public schools,—and after closing the book never reopened it for registration for said special election. The registration book, which was opened as above stated, had on it 406 registered voters. (A copy of the list was attached to the petition.) On June 3, 1891, the mayor and council passed an order calling an election for public schools, to be held on July 16, 1891, which was published in a public gazette, and a copy of which was attached to the petition. When the day for the election came on, the mayor and council appointed two managers and clerks therefor, and turned over to the managers the registration book mentioned, and instructed them to permit no one to vote whose name was not on the registration book; and the managers, in the conduct of the election, were governed by the registration book and such instructions. A large number of voters who had become qualified between the 21st day of March, 1891, and 10 days before the election for public schools, were thus deprived of their privilege of voting, and practically disfranchised. The managers of the election, by their returns to the mayor and council, certified that 282 votes had been cast, of which 269 were for public schools and 13 against public schools. (Copies of tally sheets, voting lists, and returns of the managers were attached to the petition, together with a copy of an application made by petitioners to the mayor and council for copies of said papers and other proceedings.) On July 17, 1891, the mayor and aldermen, consisting of the mayor and three named aldermen, met to open the returns and declare the result of the election. The mayor opened the returns as follows: For public schools, 269 votes; against public schools, 13 votes. Two hundred sixty–nine votes did not constitute a two–thirds majority of the qualified voters of the city, as shown by the registration list, to wit, 406, used in the election; but the mayor and aldermen, by order then passed, directed the clerk of council to prepare a revised list of the qualified voters,—that is to say, to revise the list made for the mayor and aldermen election and used in the special election,—and report to them on the day following, and then adjourned to the next day. The mayor and council met pursuant to adjournment, and the clerk, in obedience to the resolution passed the day preceding, submitted the registration list mentioned above, but stated that he had ascertained that several of the names were names of minors, several on the day of the election were nonresidents, and several had been convicted of larceny. Among those so reported as minors was the name of Edgar Fannin, and among those reported as having been convicted of larceny was the name of Jake Mathews. At the special election both Fannin and Mathews voted in favor of public schools, (the number of the ballots cast by them being given,) and petitioners asked that they might have recourse to the ballots to establish this allegation. (A copy of the report of the clerk was attached to the petition.) The mayor and council, upon receiving the report, proceeded to revise the registration list by striking therefrom the names of Fannin, Griffin, Pennington, Douglas, and Pork, leaving upon the list 401 names, and then proceeded to declare that 269 votes were a majority of the qualified voters of the city, and that therefore public schools had received the requisite majority under the law. (A copy of the revision and order declaring the result was attached to the petition.) This action was illegal, and petitioners, or some of them, were present, and protested against it. At the time the board of aldermen consisted of only three members, whereas the law required four members, and for this reason the board was an illegal board. The managers of the special election, against the protest of some of the citizens and taxpayers, kept the polls open after 6 O'clock P. M., and at least five votes (naming the voters and the numbers of their ballots) were polled after that hour, and these votes were cast for public schools. Petitioners asked that they might have recourse to the ballots to establish that fact. On August 26, 1891, the mayor and council assessed a special tax of two mills on the dollar on all the taxable property of the city, for the purpose of maintaining and supporting a system of public schools up to July, 1892, by virtue of the election mentioned, and are proceeding to collect the tax. (A copy of the order assessing the tax was attached.)

The special election was illegal and void, because the act of October 25, 1889, is unconstitutional. The fourth section of that act provides: “If at any election herein provided for two thirds of the qualified voters voting at such election shall vote for free schools, then,” etc., whereas it should have provided that, if two thirds of the qualified voters of the city should vote for free schools, then, etc. The seventh section of the act authorizes the board of education to charge each pupil attending the schools an incidental fee, not to exceed five dollars per scholastic year. The mayor and council were not a legal and properly constituted board, consisting of only three, when, under the law, it should have consisted of four, aldermen. The mayor and council had no authority to turn over to the election managers the registration list, and instruct the managers not to receive the vote of any person whose name was not on the list. There was no law authorizing registration for a special election of this character. If the law authorizing registration in Madison applies to such special elections, there should have been a new registration thereunder, for the reasons mentioned above, there being a sufficient number of voters who had become qualified as such between the day the registration list was closed and 10 days preceding the special election, who were thus disfranchised, who, if registered, would have prevented a two–thirds majority for public schools. The managers kept the polls open beyond the hour fixed by law for closing them, and received and counted at least five votes after that hour. They also received and counted the votes of Fannin and Mathews,—the vote of Fannin *23 being illegal, because he was a minor; and that of Mathews being illegal, because he had been convicted, before the election, of larceny, and had never been pardoned. These votes should not have been counted. The votes of the five others mentioned, being illegal, because polled after 6 o'clock P. M., should not have been counted.

The proceedings of the mayor and council in opening the returns and declaring the result were illegal, because the mayor and council met in open session on July 17, 1891, opened the returns, announced the vote therefrom, and, seeing that there were not two thirds majority for public schools, directed the clerk of the council to make a revised list of registration, and report to them the next day, and then adjourned to that time. This was illegal, because the mayor and council had nothing to do but to open the returns and declare the result as certified to them by the managers, and had no authority themselves, or to direct their clerk, to revise the registration list, or otherwise tamper with the same; nor bad they the right to adjourn from day to day. The mayor and council, after receiving the report of the clerk, undertook to revise the registration list by striking from it the five names mentioned above as having been so stricken, thus reducing the registration list from 406 to 401, so as to give public schools a two–thirds majority of the registration list, thus illegally revised. The revision was illegal, because the mayor and council presumed to take jurisdiction over the matter, as if they constituted a court before which the election was contested, and because such registration list was evidence of the right to vote of each of said persons so stricken off; and no one except a court under proper proceedings could inquire into the legality or illegality of the registration of such persons. The mayor and council, after striking the name of Fannin from the registration list, failed and refused to strike it from the voting list, but counted his vote in declaring the result, and also counted the vote of Mathews, notwithstanding that the clerk, in his report, stated that Mathews had been convicted of larceny previous to the election; and they also counted the votes of the five persons mentioned as having voted after 6 o'clock P. M. The returns of the managers showed that 282 votes had been cast, and the tally sheets and voting list 281; yet in declaring the result of the election the mayor and council counted 282. There was one ballot in the ballot box which was unmarked, and without any number upon it, and petitioners charge it was for public schools, and was so counted by the managers and the mayor and council, contrary to law, and petitioners prayed they might have recourse to the unmarked ballot, to establish the fact that it was cast for public schools. They prayed that the election be declared illegal and void; that the mayor and council be ordered to deliver up the ballot box, so that the ballots mentioned might be taken therefrom and exhibited to the court; that the mayor and council be enjoined from collecting the tax, from selecting a board of education, from renting or building schoolhouses, from providing or attempting to provide for the establishment of public schools, and from taking any steps to impose and collect any tax for the establishment and support of public schools, etc.

Defendants answered, in brief, it was not true that at the time the petition was filed or served upon them the mayor and council were about to elect a board of education, but a board of education, under the election, had been constituted and elected some time before the filing and serving of the petition. It was not true that any large expense or onerous taxation on the citizens would be incurred, for the rate of city taxation prior to the election was two and one half tenths of one per cent, and the special school tax assessed was two tenths of one per cent., which special tax was assessed before the filing of the petition. It was true that the clerk of council, under the act and ordinance first mentioned in the petition, opened a book of registration, and closed the same preparatory to the last annual election for mayor and aldermen, and that the book was never reopened for registration of voters for the special election, but defendants deny that it was necessary for the book to be opened for registration for the special election, there being no law requiring or providing for a registration of voters for said election. The list of registered voters for the election of mayor and aldermen has nothing to do with the validity of the special election, or of anything done in pursuance thereof, or under the act providing for the special election. No one was prevented from voting at that election because his name did not appear on the registration list, so far as defendants knew. While the managers of the election, at the time it was being held, had the list before them, it was simply to aid them in determining who were qualified voters. Defendants did not instruct the managers to permit no one to vote whose name did not appear on the list. It is not true that there was a large number of voters who had become qualified between the 21st day of March, 1891, and 10 days before the special election, or that any one of such number was deprived of the privilege of voting at that election. The election was duly and legally called, regularly and legally held, and the result thereof was 269 votes for public schools and 13 against. The 269 votes constituted a two–thirds majority of the qualified voters of the city, and defendants correctly declared the result of the election to be for public schools. The mayor and council met the day after the election to determine and declare the result, and an adjournment was had to the following day with the view of determining whether the 269 votes constituted said majority; and, further, to give any one interested an opportunity to be heard on the matter. A portion of petitioners did actually appear and were heard, but the mayor and council, after an investigation and due deliberation, came honestly and fairly to the conclusion that the election had resulted for public schools, and they so declared. A safe and legal criterion by which, in *24 such matter, the number of qualified voters should be determined, is the number of votes polled at the last municipal election in the city, and at such last election there were polled 249 votes. There can be no other legal criterion to determine this question, unless it be the number of votes polled at the particular election under consideration. In either case there was largely over a two thirds majority in favor of the result as declared by defendants. In arriving at the result they did investigate the registration list, and to some extent the question as to how many names of persons were entered thereon who were not qualified voters on the day of this election, and even with this list as a guide they concluded that more than two thirds of those actually qualified to vote had so duly and legally cast their ballots. Besides the names of those on the registration list that beyond question were not authorized or qualified to vote, there are a large number of others on the list who were not qualified voters in this election, and especially were those disqualified whose names were reported by the clerk as nonresidents, and as being otherwise disqualified. At the time of declaring the result the entire board of aldermen were present and acting, there being at the time only one vacancy on the board, caused by the death of a councilman, which vacancy has since been filled. There was a quorum present, with full power and authority in law to act. The polls at the election were not kept open after 6 o'clock P. M., nor were any votes cast after that hour. Defendants did not direct the clerk of council or any one else to revise the registration list, to correct it, or to change any of the names thereon, but it was simply used as a guide to determine how many actually qualified voters there were in the city on the day of the election; and, while they believe it was sufficient to consider only the number of votes cast in this election and the one just preceding, they also investigated the other question, and decided that there were enough duly–qualified electors voting at the election to constitute a majority of two thirds of the actually qualified voters in the city. All of the petitioners participated in and voted at the election. Defendants acted under a valid act of the state, entirely constitutional, and especially so in every essential particular; and the election was held and result declared and determined in accordance with that act and the statutes and constitution of the state. Petitioners cannot, by the proceedings they have instituted, inquire into the legality of any votes polled at the election, or the correctness of the result as declared by the duly constituted authorities, empowered by law to determine and announce the result of the election.

In the report of the clerk of the council above referred to it was stated that Fannin, Douglas, Pork, and Speed, whose names appeared on the registration list, were minors at the time the report was made, upon the information of such persons, with the exception of Speed, whom the clerk had not been able to see; that the three persons whose names appeared upon the list, Jake Mathews and two others, (Blount and Wingfield,) the clerk had learned were convicted of larceny, but he only knew this from hearsay; that he found the names of two persons (Pennington and Griffin) on the list, who were dead on the day of the special election, and the names of seventeen persons, all of whom, he was informed by general rumor, were not residents of the city on the day of the special election; and that he found the name of one other person, who, he understood, was convicted of the crime of larceny a short time before.

On the hearing for temporary injunction the exhibits to the petition were put in evidence, and petitioners produced their testimony, to the following effect: The petitioners were, and still are, opposed to the establishment of public schools; were opposed to them in the election, and in no way lent their support or encouragement to the establishment of public schools. Edgar Fannin was a minor when the election was held, voted in the election, and voted for public schools. Thirteen persons made affidavit that they were bona fide citizens of the city on the day the special election was held, and had been such for more than 10 days previous thereto, and that, not having registered for the mayor and aldermen's election, they were not permitted to vote in the election for public schools, and were given no opportunity to register for the election for public schools. From the affidavit of the clerk of the city council it appeared: As such clerk he is ex officio registrar. He opened the registration books for the mayor and aldermen's election, and kept them open until the 21st day of March, 1891, and then closed them. He opened no registration book for the special election for public schools, and received no instructions from the mayor and council to do so; and no person who had failed to register prior to March 21, 1891, or had become a citizen between that date and July 16, 1891, or had become of age between those dates, had any opportunity to register for the public schools' election. The registration list furnished to the managers of the special election to guide and control them in the conduct of that election was the registration list made as stated by deponent. Previous to the election, Jake Mathews had been convicted of larceny, and had not been pardoned, but this fact deponent did not know except from hearsay. It further appeared that on the day on which the election for public schools was held, Wade, one of the petitioners, went to the polling place after 6 o'clock P. M., and found the polls still open, and the managers receiving votes, whereupon, as a taxpayer and citizen, he called the attention of the managers to the fact that the hour fixed by the law for closing the polls had passed, and protested against their being kept open any longer, and against the reception of any other votes; but the managers disregarded the protest, and received at least five votes after 6 o'clock. That Wade stated these facts to the mayor and *25 council when they met to open the returns and declare the result. That when the returns were opened, and the result declared, there were present the mayor and three councilmen, there being at that time but three councilmen, the vacancy caused by the death of an alderman some two or three months before the election not having been filled. The managers of the election had the registration list, and the managers were guided by it. Neither the mayor and aldermen nor the mayor instructed the managers not to permit any one to vote whose name was not on the registration book, but the managers did not permit any one to vote (as they thought) whose name was not on the list, and were not in the habit of permitting any one to vote whose name was not on the list. There was a vote in the ballot box not marked, and not corresponding with any on the registration list. It was for public schools, and was counted. The 6 o' clock town bell had been rung before the polls were closed. Two persons made affidavit that they had been bona fide citizens of Madison more than 10 days before the special election; that they had no opportunity to register; did not apply for registration. One did not know whether the books were open, and the other did not think he could vote if not registered etc. The record of the indictment, trial, and conviction of Jake Mathews for burglary was put in evidence.

Defendants put in evidence their answer, and also affidavits to the following effect: No one who desired to vote against public schools was prohibited from voting on account of not being registered, that the election managers knew of. Those who, in the judgment of the managers, were not entitled to vote, and hence did not vote, indicated that they desired to vote for public schools. The managers never received any instructions from the mayor and aldermen not to receive any votes which were not from persons who were registered. The polls were opened by the watch of one of the managers, and closed by the same time, before the hour of 6 P. M. The election was conducted fairly, and the managers have every reason to believe that, had no votes whatever been refused, (there were only about one dozen of them,) the majority for public schools would have been larger than it actually was.