Houser v. Hartley

Beck, P. J. (After stating the foregoing facts.) The act proposing the constitutional amendment in question provides: “Tf a — 140 — majority of the electors qualified to vote for members of the General Assembly voting thereon shall vote for the ratification of said proposed amendment, then the Governor shall, when he ascertains the same from the Secretary of State, to whom the returns of said election shall be referred in the manner as in cases of elections for members of the General Assembly, to count and ascertain results, issue his proclamation for one insertion in one daily paper of this State, announcing such results, and declaring the amendment ratified.” Acts 1922, p. 28. And it is insisted by counsel for the-plaintiff in error, who contend that the act proposing the amendment was ratified, that the Secretary of State, after canvassing the returns, ascertained that the result was in accordance with this contention, and declared that the amendment was duly ratified. Conceding that a declaration of the result of the election by the Secretary of State would be final and conclusive upon the question as to whether or not the amendment was ratified, we have, after careful consideration of the certificate made by the official referred to, reached the conclusion that he did not declare the result of the election to be that the amendment was ratified. He does certify to the Governor that “The contention is that the irregularities complained of will cause the throwing -out of 3,857 votes cast for the creating of Peach County, and will throw out 8,958 votes cast against the amendment creating Peach County, in which it affirmatively appears that the returns are not legally certified. It further appears that in cases where returns are not accompanied by the papers required by law, where there is nothing to show whether they were legally certified or the election legally held, there should be thrown out of the votes counted for Peach County 1,192 votes, and in the same class of comities, of the votes cast against the Peach County amendment there should be disregarded 4,007 votes. It further appears that in those counties whose consolidated returns were based on illegally held elections at precincts, there should be thrown out of the vote cast for Peach County 300 votes, and of the vote cast against Peach County 956 votes. To sum up the differences on the assumption that the objections are real and substantial and of such character as to invalidate the returns, the total decrease in the vote for Peach County would be 5,349 votes, leaving the actual and legal vote cast for the ratification of the amendment creating Peach County 24,493 votes.” And he then adds — 141 — this statement: “The deductions made for the same reasons in the vote cast against the ratification of the amendment creating Peach County would be 13,921 votes, leaving the total legally cast vote against the ratification 22,645 votes.” And then there, follows in this certificate two closing paragraphs, in which the Secretary of State shows that he does not pass finally and absolutely upon the issues and questions involved. Those paragraphs are in this .language: “If these objections are sound and valid, then there was a majority for the ratification of the amendment creating the County of Peach, of 1,848. The Secretary of State is not a judicial officer, and his functions are purely ministerial. No discretion is vested in him under the constitution or the law; but apparently, if discretion is lodged anywhere, it is in the Governor, whose duty it is, under the constitution, whenever a proposed constitutional amendment receives a majority of the votes cast, to issue his proclamation declaring the same to have been ratified.” In the statements in the certificate preceding the last two paragraphs are presented certain objections to counting votes contested, a statement of the opinion of the Secretary of State that in certain respects there had been a failure to comply with the law, and then, instead of a declaration of the final result, the Secretary of State certifies that, “if these objections are sound and valid, then there was a majority for the ratification of the amendment creating the County of Peach, of 1,848 votes. But he expressly declines to pass upon the question as to whether the objections were sound and valid. We say expressly declines; his conclusion is in this language: “The Secretary of State is not a judicial officer, and his functions are purely ministerial.” In this certificate he adds that he has no discretion, that none is vested in him under the constitution or the law; but he decides that apparently, if discretion is lodged anywhere, it is in the Governor, whose duty it is, he concludes, whenever a proposed constitutional amendment receives the majority of the vote cast, to issue his proclamation declaring the same to have been ratified. Whether as a court, upon a record properly presenting the question, we would have jurisdic-' tion to decide whether a proposed amendment to the constitution was ratified, without a declaration to that effect made by the officer clothed with the .authority under the law to make it, we do not now adjudicate, as no record properly presenting that question'is — 142 — now before ns, and tbe plaintiff in error is not asking a judicial determination of tbe result of the election. Moreover, in that portion of the act proposing the amendment which prescribed who shall declare the amendment ratified, it is provided, after declaring that the returns of the election shall be referred to the Secretary of State in the manner as in ease of elections for members of the General Assembly, “to count and ascertain the results,” that the Governor shall announce the result and declare the amendment ratified, if a majority of the electors qualified to vote for members of the General Assembly, voting in the election, shall vote for the ratification of the proposed amendment. And we are of the opinion that before a court could hold that the amendment had been ratified, it must appear that the Governor actually declared it ratified, unless the question of ratification or non-ratification is presented in this court in a record properly raising the question for judicial determination. Of-course that would involve, along with the presentation of the question, a proper exhibit of all the facts necessary for its determination; and that is not done in this case. It is not in all cases indispensably necessary that the Governor or the Secretary of State should declare an amendment to the constitution ratified; and the Governor could not be compelled by mandamus to declare the result and issue his proclamation; nor is it essential that such could be done. It is competent for this court, where the question is properly raised and brought here for adjudication, to decide that very question. Hammond v. Clark, 136 Ga. 313 (71 S. E. 479, 38 L. R. A. (N. S.) 77). In the plea filed by Houser, the respondent named in the application for the writ of mandamus, the plaintiff in error here, it is alleged, among other things, after setting forth parts of the certificate of the Secretary of State, and what he contends are the logical deductions to be made from that certificate, that “The Governor, upon receiving the certificate, likewise took the position that it was without the scope of his authority to determine as to the validity and soundness of the objections referred to by the Secretary of State, but that same would have to be judicially determined by some court of competent jurisdiction; and therefore issued no proclamation as to the Peach County amendment, holding the matter in abeyance until a judicial determination could be had as to the soundness and validity of the objections, which, if found to be — 143 — sound and valid, would, under the terms of the certificate of the Secretary of State, render the same definite and certain to the effect that the amendment to the constitution creating the County of Peach was duly ratified.” And so, neither by the Governor nor by the Secretary of State has there been a final, absolute declaration of the ratification of the amendment. Moreover, we are of the opinion that the consolidated returns of counties should not have been thrown out for irregularities and merely because the returns were not accompanied by all the papers required by law, and because the papers were not certified in accordance with the statute directing how they shall be certified. Suppose that in 28 counties no legal quorum of any one of the consolidation boards of such counties consolidated the vote and certified the result of the election to the Secretary of State, and in other counties the' consolidated returns were unaecoihpanied by any voters’ lists, tally-sheets, or copies of superintendents’ oaths, as directed by the statute, and without which the Secretary of State cannot ascertain if the consolidated returns were made and subscribed by a lawful quorum, should the votes of these counties be cast out merely because of these irregularities? We think not. Suppose that the majority in one large county of the State, in favor of the adoption of the ratification of the amendment, had been sufficient to overcome the adverse majority in the rest of the State, and returns had been sent up showing this, but the proper officials having authority to consolidate the vote had purposely refrained from and refused to sign the returns, although the election in each precinct in the county was'regularly and legally held, should the action of these recalcitrant officers be sufficient to defeat the will of the people as expressed at the election? The election in this State was by precincts. It appears from the Secretary of State’s certificate that in certain counties the consolidated returns were based on “illegally held elections at precincts;” but the votes cast in these precincts where the election was illegally held were insufficient to affect the result one way or the other. In order to have declared a different result from that appearing on the face of the returns, it would have been necessary for the Secretary of State to throw out the votes of some 28 counties in which it appears that there was “no consolidated certificate signed by a majority of the superintendents of the election at the county site and by at least one superintendent — 144 — from each of the other precincts. . . The total apparent vote excepted to of these 28 counties was 3,857 for the amendment and 8,958 against the amendment.” The Secretary of State was of the opinion that these returns were illegal; but he did not throw out the votes, for the reason set forth in his certificate. And we are of the opinion that he should not have done so. The Political Code, § 82 (which relates to the manner of conducting elections), subsection 9, declares: “They [the superintendents of the election] shall make and subscribe two certificates, stating the whole number of votes each person received in the county; one of them, together with one list of voters and one tally-sheet from each place of holding the election, shall be sealed up and, without delay, mailed to the Governor; the other, with like accompaniments, shall be directed to the clerk of the superior court of the county, and by him deposited in his office.55 We are of the opinion that this section of the Code is directory, and not mandatory. Section 82, subsection 7, has been declared to be directory. Tanner v. Deen, 108 Ga. 95 (33 S. E. 832). And with equal reason section 82, subsection 9, should be held to be so. In the case of Hammond v. Clark, supra, it was said: “In the Constitutional Prohibitory Amendment Cases, 24 Kans. 700, 710, Justice Brewer, who later became a member of the Supreme Court of the United States, thus strongly set forth the position that mere immaterial omissions or errors, which work no wrong to substantial rights, should be disregarded: ‘The two important, vital elements in any constitutional amendment, are, the assent of two thirds of the legislature, and a majority of the popular vote. Beyond these, other provisions are mere machinery and forms. They may not be disregarded, because, by them, certainty as to the essentials is secured. But they are not themselves the essentials.5 . . In People v. Sours, 31 Colo. 369 et seq. (74 Pac. 167, 102 Am. St. R. 134), the same view was taken. Steele, J., said: ‘At the outset it should be stated that every reasonable presumption, both of law and fact, is to be indulged in favor of the validity of an amendment to the constitution when it is attacked after its ratification by the people.5 See also Thompson v. Winnett, 78 Neb. 379 (110 N. W. 1113, 10 L. R. A. (N. S.) 149); State v. Laylin, 69 Ohio St. 1 (68 N. E. 574); Weston v. Ryan, 70 Neb. 211 (97 N. W. 347). This liberal interpretation applies rather to the manner of compliance — 145 — with constitutional requirements in regard to amendments than to a total omission or disregard of such a requirement. It has not generally been held that an essential requirement could be entirely omitted, nor does the present case require us to take that position. But we concur in the view that substance is more important than form, and that the will of the legislature lawfully expressed in proposing an amendment, and the will of the people expressed at the proper time and in the proper manner at the ballot-box, in ratifying such amendment, ought not to be lightly disregarded and set at naught, even if an executive or ministerial officer should not strictly comply with his duty in connection with matters of detail, regarding the publication, or the like, and which do not appear to have substantially aifected the result.” “The right to an office by virtue of an election by the required number of votes cannot be defeated by the mistake, negligence, or misconduct of a canvassing board. Inasmuch as the duties of canvassing boards, except as to determining the genuineness of the returns, are generally regarded as merely ministerial, the omissions or mistakes of such boards can have no controlling influence on the election.” 20 C. J. 204. In the case of People v. Van Cleve, 1 Mich. 362 (53 Am. D. 69), it was said: “In a republican government, where the exercise of official power is but a derivative from the people, through the medium of the ballot-box, it would be a monstrous doctrine that would subject the public will and the public .voice, thus expressed, to be defeated by either the ignorance or the corruption of any board of canvassers. The duties of these boards are simply ministerial; their whole duty consists in ascertaining who are elected, and in authenticating and preserving the evidence of such election. It surely cannot be maintained that their omissions or mistakes are to have a controlling influence upon the election itself.” In the same connection see the extended note to the case of People v. Green, Ann. Cas. 1916A, 707. In view of all the facts in this record and the issue presented hereby, we conclude that the court properly held that the plea to the jurisdiction was not sustained, and then properly granted the mandamus absolute; for no other ground of error in the judgment rendered by the court is argued or urged than that based upon the ratification of the amendment creating the County of Peach, in consequence of which, it is contended, the respondent was a resi — 146 — dent of Peach County and not of Houston County, in which the proceedings were brought. Judgment affirmed. All the Justices concur, except Bussell, G. J., dissenting. Hill, J., concurs specially.-