Hopkins v. City Commission

Hill, J. (After stating the foregoing facts.) The legislature in 1923 (Acts 1923, p. 837), passed an act limiting the rate of taxation in the City of Waycross for. school purposes at ten mills — 227 — instead of six mills, as provided in the act of October 2, 1887, as amended. Section 3 of the act of 1923 provides: “Be it further enacted by the authority aforesaid, that this act shall be submitted to the qualified voters of the City of Waycross for their approval, for which purpose the city commission of the City of Waycross shall order a special election to be held on some date to be designated by said commission in a resolution or ordinance of the commission of the City of Waycross, which said resolution or ordinance shall set forth the rate of taxation now in force and the rate Of the proposed increase, the date of the proposed election,' and the rules and regulations governing same and the qualification of voters. Notice of such election shall be published in a newspaper in said City of Waycross at least once a week for two weeks before the election. At said election those in favor of the approval of this act shall have written or printed on their tickets: 'for increased taxation for public school purposes/ and those against this act and of the approval of same shall have written or printed on their tickets: 'against increased taxation for public school purposes.’ The managers of said special election shall make return to the commission of the City of Waycross, whose duty it shall be, at their first regular meeting thereafter, to open the same, to declare the result, and record the same in the book of their proceedings; and if two thirds of those voting at said election, as provided in the constitution of Georgia, shall be in favor of the increased taxation, then this act shall become operative, and said commission of the City of Waycross and the board of education of the City of Waycross shall proceed to carry out their respective duties under the same. Should this act as amended fail of adoption, said commission of the City of Waycross shall submit the same to another election after the lapse of twelve months from the first election.” In pursuance of the authority conferred by the above act the city commission at a regular meeting adopted a resolution ordering a special election to be held November 7, 1923, for the purpose of determining whether or not the rate of taxation for public-school purposes should be increased to ten mills as fixed by the act, at which time the election was held. The facts show that the commission ordered a recount of the ballots before the result of the election was declared, and that the recount changed the result from being against increased taxation to being in favor of in — 228 — creased taxation. Certain citizens and taxpayers, being dissatisfied with the result as declared by the city commission, filed a petition. for mandamus against the city commission to compel them to declare the result of the election to be against increased taxation, in_ accordance with the returns made by the managers of the election. A mandamus nisi having been issued, the trial judge on the hearing entered a judgment denying the prayers of the petition, and refused to make the mandamus absolute. To this judgment the plaintiffs excepted. We are of the opinion that the city commission was without authority to permit a recount of the ballots cast at said election and to declare the result to be different from .what it appeared to be on the face of the returns. The charter of the City of Way-cross (Acts 1909, p. 1456, sec. 9), declares: “that the elections for mayor and aldermen of said city, as well as any and all other municipal elections held in said city, sliall be held under the same rules and regulations as nearly as practicable as elections for members of the General Assembly. The mayor and aldermen of said city shall have the right and power to appoint for each election precinct in said city any three freeholders, or any two freeholders and a justice of the peace, who are residents of the said city, and not candidates or directly interested in the result thereof, to conduct such elections. . . Said managers shall hold such elections under the usual rules and regulations governing such matters, and shall count the votes; and when the votes are all counted out, the managers at each voting precinct shall sign a certificate, stating the number of votes each person, or each side of the question, voted for, as the case may be, received at such precinct, and each list of voters and each tally-sheet at each precinct must likewise be signed by the managers at such precinct. Said certificate together with one tally-sheet and one list of voters from each precinct shall be securely sealed in an envelope, one for each precinct, with the names of the managers endorsed thereon, respectively, and then delivered to the clerk of the city council, who shall keep same safely and return them to the next meeting (either called or regular) of the mayor and aldermen, who shall receive and open said returns and declare the result of the election by formal resolution, which shall be entered upon the minutes of the city council. One list of voters, one tally-sheet, and all the ballots at each pre — 229 — cinct shall be sealed by the managers, with their names endorsed on the package respectively, and returned by them to the ordinary of said County of Ware; and all contests growing out of said election or concerning the same shall be before said ordinary of the county, and heard and determined by him as in other cases of contest, under the general rules and laws governing such matters, and no such contest shall be allowed or heard by him unless begun within five days after the election.” The charter of the City of Waycross was amended in 1922 (Acts 1922, p. 1087), by the creation of a commission form of government and a city manager, but that act did not change the charter with respect to elections. We are of the opinion that under the charter of the City of Waycross, providing how elections shall be held, the ballots in the instant case should-have been sent by the managers of the election to the ordinary of the County of Ware; and that the city commission had no authority to permit or order a recount of the ballots, and that their duty was, at their first regular meeting after the election, to open the returns which the managers of the special election should make to the city commission, declare the result, and record the same in the book of their proceedings; and that the city commission exceeded their authority when they permitted a recount of the ballots. The fact that the recount may have been fair and honestly made does not answer the proposition that they had no authority to permit it to be done at all. To allow such a procedure without charter authority would be to open the door to frauds hereafter, if such a precedent is established. But it is argued that the recount was made by the election managers, and that they had the right to make the recount. The record shows that the recount was not made entirely by the managers of the election, but by the managers and others who were called in to aid in the recount, the latter not being sworn as managers, or in any other way. Besides, we are of the opinion that when the election managers had certified the result of the election and made their returns to the city commission, their duty was at an end and functus officio. In 20 C. J. 197, § 249, it is said: “Where election officers have completed the count, executed and delivered their returns, their powers and duties are at an end; they are without power to withdraw the returns, add to, change, or alter them, or to make a ngw return.” And see 9 B. C. L. 1110, §§ 114, 115. — 230 — Is mandamus an available remedy in a case like the present ? The Civil Code (1910), § 5440, provides that “All official duties shall be faithfully fulfilled; and whenever, from any cause, a defect of legal justice would ensue from a failure or improper fulfillment, the writ of mandamus may issue to compel a due performance, if there be no other specific legal remedy for the legal rights.” From the petition in this case and the agreed statement of facts we are of the opinion that there was a “failure or improper fulfillment” of official duty, and that the citizens and taxpayers who bring this complaint have no other specific legal remedy. Neither the charter of the City of Waycross nor the act of August 14, 1923, a part of which is quoted in the first division of this opinion, authorizes the city commission to keep or have access to the ballots of any election held in the City of Waycross. Under the law the ballots were to be turned over to the ordinary of the county, and the city commission were not authorized to look to anything in declaring the result of the election but the certificate of the election managers and the voters5 list and tally-sheet which accompanied them. There is no authority given, so far as we have been able to find, to any one to enter the ballot-box, except in the case of contest; and therefore we are of the opinion that it was an unlawful act on the part of the managers of the election when they placed the ballot-boxes with the city clerk instead of with the ordinary of the county, as the law provides; and we are likewise of the opinion that when the city commission permitted some of the managers of the election, and others, to go into the ballot-boxes and take out the ballots and recount them, they exceeded their authority. It is insisted that while it is alleged in the petition that two thirds of those voting in the election did not vote for increased taxation, yet there is no evidence in the case to support that allegation, and that the evidence shows that the number of votes cast in the election for and against increased taxation was correctly shown by the recount. The reply to this is that the agreed statement of facts shows that on the face of the returns the vote for increased taxation was 1257, and the vote against increased taxation was 636, and that the vote in favor of increased taxation was less than two thirds of the total vote cast. It will not do to say that the evidence on' the recount is the evidence that must control. — 231 — The figures as they stood before a recount must control. The city commission had but one duty to perform, and that was, in the absence of a contest, to declare the result of the election as it appeared from the managers’ certificate. It was their plain and manifest duty to so declare the result; and having failed to do so, the writ of mandamus is an available remedy to require them to do so. We are therefore of the opinion that the trial judge erred in not making the mandamus absolute. Judgment reversed. All the Justices concur.