Mayor of Griffin v. Inman, Swann & Co.

Bleckley, Judge. The city charter provided for subscription by the mayor and council, “ on the recommendation of a majority of citizens, either in public meeting or by public election.” As election is designated as one of the modes of making the recommendation, the citizens contemplated in the charter are probably those qualified to vote. The general source of au [377] thority for such subscriptions, which the constitution ordains, is “a majority of the qualified voters of such town or city, voting at an election held for the purpose?” Leaving out the question whether the action of any number of citizens “ in public meeting” could be recognized, we think the charter and the constitution are near enough alike, in their provisions touching elections, for the former not to be wholly repealed by the latter. We are not sure that a repeal would be wrought if they were more unlike than they are, as the constitution, in the provision from which we have quoted, seems to intend a limitation upon future legislation, and not the abrogation of prior enactments. If the charter, in the use of the loose term “citizens,” be construed to mean all the citizens, whether qualified to vote or not, and if the constitution be retroactive and in conflict with it, the result would be, not a repeal, but a modification of the charter. The terms, “ a majority of citizens,” as found in the charter, would thus be cut down and restricted to “ a majority of the qualified voters, * * voting at an election held for the purpose.” Looking to the provisions of both instruments, construing them together, and applying the spirit of the constitution, we think the proper mode of administering the charter, at an election held in 1871, was to give all the qualified voters, and none others, an opportunity to vote. This was done. It appears that a majority of those entitled to vote did not take part in the election; but this, we think, made no difference. The general rule as to popular elections is, that those who abstain from exercising the franchise are not regarded in declaring the result. By staying away from the polls, they virtually agree to abide by the will of a majority of those who attend and vote. This is the rule expressly established by the constitution for the class of elections which we are now considering: Only “a majority of the qualified voters * * voting,” is required to authorize subscription: See 52 Georgia Reports, 621. For other points ruled in the case, read the syllabus together with the reporter’s statement. * Judgment affirmed.