Opinion
23141, 23142.
ARGUED SEPTEMBER 15, 1965.
DECIDED OCTOBER 11, 1965. REHEARING DENIED NOVEMBER 4, 1965.
Injunction. Laurens Superior Court. Before Judge Ward.
Bloch, Hall, Groover Hawkins, Denmark Groover, Jr., N. G. Reeves, Jr., Paul J. Jones, Jr., for plaintiffs in error.
Arthur K. Bolton, Attorney General, Paul Rodgers, Assistant Attorney General, William M. Towson, B. B. Hayes, Nelson Nelson, King Spalding, Robert L. Steed, contra.
1. The provision of the Election Code of 1964 requiring five electors to contest an election involving the adoption of a constitutional amendment violates the due process provision of the Georgia Constitution.
2. The petition alleged facts showing the exclusion of a sufficient number of legal votes to change the announced result of the election which adopted a constitutional amendment and was good as against general demurrer.
3. No grounds to apply laches appeared on the face of the petition.
4. The facts set out in Division 2 of this opinion are sufficient to show the Constitutional Amendment under which the enabling Act of 1965 (Ga. L. 1965, p. 2023) was enacted not to have been legally voted upon. It follows that these facts, if true, would subject the enabling Act to the attacks made upon it and render it invalid.
5. Exceptions to the overruling of the demurrers to the defendants' plea and answer, not having been insisted upon by the plaintiffs in error, are treated as abandoned.
ARGUED SEPTEMBER 15, 1965 — DECIDED OCTOBER 11, 1965 — REHEARING DENIED NOVEMBER 4, 1965.
On June 2, 1965, the petitioners, E. S. Stinson, Jack Lewis and Elmer Dixon, filed their petition in the Laurens Superior Court against a plethora of named defendants, including the Secretary of State, the Ordinary of Laurens County, and various members of Boards of Education in that county, in which they sought injunctive relief, a declaration that a Constitutional Amendment purportedly adopted in 1964 was improperly ratified and praying that an Act of 1965 enacted pursuant to the Constitutional Amendment be declared unconstitutional and void.
The allegations of the petition with which we shall be concerned in a decision of this case are as follows: that prior to November 3, 1964, there were in existence two school systems in Laurens County, to wit, the Laurens County School System (hereinafter referred to as the County System) and the Independent School System of Dublin (hereinafter referred to as the Independent System); that on November 3, 1964, an amendment (Ga. L. 1964, p. 903) proposing to merge the two systems into a Dublin Laurens County School System was submitted for ratification; that such amendment was a local amendment required to be separately submitted to the electors of the two school systems and required to be approved by a majority of each of the two systems voting separately; that the Dublin Election District is larger in territory than the Independent System and comprises electors of both systems; that electors of the Dublin Election District were not separately voted, but at the election all votes cast in that election district were counted without regard to the school system to which they belonged; that within the Dublin Election District it was impossible to determine how many electors of the County System cast their votes for or against the proposal or how many of the electors of the Independent System voted for or against the proposal; that of the votes counted in the Dublin Election District there were several hundred electors, to wit, in excess of 500, who resided in the County System and whose votes were counted with and included in the totals of the electors residing in the Independent System; that it was impossible to tell if the votes of the several hundred electors of the County System had been counted with the other electors of such system and hence whether the amendment was ratified or rejected; that there were only 19 more votes for ratification than against ratification of the amendment in those areas of the County System where the electors voted separately (the county area outside the Dublin Election District); that relative to the ratification of the amendment there exists an insurmountable uncertainty incident to the method of submission and the counting of votes which would overcome the apparent and announced result of the "referendum"; that there were 493 absentee ballots which were counted and included without regard to the school district of which each absentee voter was an elector, the votes being added to the totals of the Dublin Election District; that of the absentee electors at least 100 were electors of the County System and their votes were not separately reflected or reflected with any other election district outside the Independent District; that a failure to have the votes properly counted would nullify the petitioner's votes against ratification and require a result different from that which would have appertained had the votes been properly counted; that as a result the amendment was not duly ratified.
The petition further alleged that in 1965 the General Assembly enacted into law an Act (Ga. L. 1965, p. 2023) purporting to implement the amendment; that pursuant to that Act an election was held for members of the Dublin Laurens County School Board and that certain defendants were elected; that the petitioners did not bring this petition prior to June 1965, because an action which sought to require a proper certification of the referendum on the amendment had been filed in January 1965, by other parties and this court rendered a decision on that case May 19, 1965; that this action was brought while a rehearing was pending before this court.
The petition also alleged that the Election Code of 1964 (Ga. L. 1964, Ex. Sess., p. 26) is not an adequate remedy at law and is inapplicable, but if it is applicable it is unconstitutional and void; that the Act of 1965 (Ga. L. 1965, p. 2023) was unconstitutional and void in the absence of the adoption of the Constitutional amendment.
The defendants filed their demurrers to the petition as amended on the grounds: that no cause of action was set forth; that the petitioners failed to show any legal standing to bring the suit; that the petitioners failed to avail themselves of the provisions of the Election Code of 1964, supra, to contest an election and that they had an adequate and complete remedy at law under that Act; that by virtue of their long delay in bringing the petition and allowing the State and local governments to proceed to implement the provisions of the amendment, the petitioners are guilty of such laches as to bar them from bringing the action. The defendants also filed a special plea based on three grounds, to which plea the petitioners demurred.
After a hearing on the demurrers to the petition, the trial judge entered an order in which he found that the petition showed, as a matter of law, that it did not set forth a cause of action for the reason that the Election Code governed, and since petitioners had not proceeded under that law they could not now bring this action. The judge also ruled against the plaintiffs' contention that the Election Code was unconstitutional and ruled that the enabling Act was valid and that the petitioners were guilty of laches. He also sustained the petitioners' demurrers to ground 1 of the defendants' plea, but overruled the demurrers as to grounds 2 and 3. To the adverse rulings contained in the order, the plaintiffs except and bring the case to this court for review.
Under the view we take of this case as presented by argument of counsel, there are three principal questions which must be answered.
(1) Did the petitioners have an adequate remedy at law under the Election Code of 1964, supra?
(2) If the petitioners did not have an adequate remedy at law and could seek equitable relief, did the petition set forth a cause for such relief?
(3) Did the petition affirmatively disclose the petitioners were guilty of laches so as to bar their right to the relief prayed?
In the following divisions of this opinion we shall treat the questions in the order here set out.
1. The defendants contend that the petitioners had an adequate remedy at law under the contest provisions of the Election Code of 1964 (Ga. L. 1964, Ex. Sess., pp. 26, 177; Code Ann. Ch. 34-17). The provision recites: "the approval or disapproval of any question submitted to electors at an election; may be contested by any person who was a candidate at such primary or election for such nomination or office, or by any five electors who were entitled to vote for such person or for or against such question." Ga. L. 1964, Ex. Sess., pp. 26, 177 ( Code Ann. § 34-1702). The word "question" under this provision is defined as "a brief statement of such constitutional amendment or other proposition as shall be submitted to a popular vote at any election." Ga. L. 1964, Ex. Sess., pp. 26, 28 ( Code Ann. § 34-103 (z)). Among the grounds on which an election may be contested are "when illegal votes have been received or legal votes rejected at the polls sufficient to change or place in doubt the result." Ga. L. 1964, Ex. Sess., pp. 26, 178 ( Code Ann. § 34-1703 (c)). Hence, without more the 1964 Act would be applicable and would appear to furnish an adequate remedy at law for the complaint here made.
However, the petitioners assail this provision as violative of Art. I, Sec. I, Pars. II and III of the Georgia Constitution ( Code Ann. §§ 2-102, 2-103) in that the requirement that there be five electors to bring into question the adoption of a constitutional amendment deprives the petitioners of due process and their right to protection of person and property. Since an unconstitutional or void provision would not furnish an adequate remedy at law within the purview of the equitable maxim contained in Code § 37-120, we consider the attack made on this provision.
Counsel for the defendants have cited numerous examples of laws in other jurisdictions and even some prior Acts in Georgia where there were provisions requiring plural complainants in an election contest. Tharpe v. Hardison, 69 Ga. 280, 282; Ga. L. 1897, p. 87 ( Code § 23-506). However, no authority is cited upholding the validity of such provisions when attacked on the constitutional basis here made.
Without deciding the validity of such requirement in a normal election contest, we pass only upon the issue of whether plural contestants may be required in order to challenge the ratification of a constitutional amendment. To pose the question is to answer it; for, clearly every citizen whose rights are affected by an invalid constitutional amendment may seek redress in our courts. To insure compliance with the amendatory processes of the Constitution in order that one act only under a validly amended constitution is a matter of vital concern to each individual. We can not countenance a statute which silences the protesting voice of a single person merely because he is unable to persuade a certain number of his fellow citizens to join with him in challenging an abortive attempt to change the basic instrument of our government. Such a concept is inherently abhorrent to the fundamental tenets of a constitution which historically has upheld the rights of the individual.
We have not overlooked the severability clause of the 1964 Act, Ga. L. 1964, Ex. Sess., pp. 26, 219 ( Code Ann. § 34-2003), nor the rule that: "where an Act can not be sustained as a whole, the courts will uphold it in part, when it is reasonably certain that to do so would correspond with the main intent and purpose which the legislature sought to accomplish by its enactment, if, after the unconstitutional part is stricken, there remains enough to accomplish that purpose. An Act can be pro tanto unconstitutional." Moseley v. State, 176 Ga. 889, 891 ( 169 S.E. 97). Nevertheless, under Code Ann. Ch. 34-17 the power to contest "the approval or disapproval of any question submitted to electors at an election" is inseparably interrelated with the requirement that it be contested "by any five electors who were entitled to vote ... for or against such question." Hence, the right to contest and the requirement as to the number of contestants must stand or fall in toto, for we can not judicially ascertain what the legislature intended if the "five electors" prerequisite be stricken. Hoover v. Brown, 186 Ga. 519, 528 ( 198 S.E. 231).
Code Ann. Ch. 34-17, insofar as it pertains to constitutional amendments, is invalid, unconstitutional and void. It is thus apparent that the petitioners could not obtain relief under that law and were entitled to seek the intervention of equity.
2. The primary question for our consideration is whether the petition alleged facts showing that the constitutional amendment was invalid because it was not ratified "by a majority of the electors qualified to vote for members of the General Assembly voting thereon in each ... political subdivision [directly affected]" as required by Art. XIII, Sec. I, Par. I ( Code Ann. § 2-8101) of the Georgia Constitution.
Counsel for the defendants urge that Styles v. Jones, 217 Ga. 228 ( 121 S.E.2d 627), is controlling here and demands a finding in their favor. Although the premise is valid we can not agree with the conclusion reached. In the Styles case we considered the paramount command of the Constitution that an amendment which is not general must be passed by a majority of electors in the political subdivision affected, and in doing so we recognized the rule in Crow v. Bryan, 215 Ga. 661, 664 ( 113 S.E.2d 104): "that an election will be avoided when there is injected into it the insurmountable uncertainty incident to the rejection of the votes of electors in a sufficient number to overcome the apparent and announced result of the election, if they had all voted against the result reached ..." Under Styles and the cases cited, a plaintiff might proceed under either of two theories: (1) an inclusion of illegal electors; (2) an exclusion of legal electors. However, in the Styles case the plaintiffs proceeded under neither theory and we held that it was not enough to allege there was insurmountable uncertainty as to the result without showing that enough votes were involved so that the results might have been changed. Thus, this court held, in effect, there was no showing that a majority of the electors in the political subdivision affected had not voted for ratification.
In the present case, as we construe the allegations of the petition, the petitioners are proceeding on the second theory, that votes of county electors were excluded from the County System vote total in two salient particulars. In the first instance, it is alleged that in excess of 500 votes in the Dublin Election District should have properly been included in the County System vote. In the second instance, it was alleged that more than 100 absentee ballots were excluded from the County System total by being improperly placed in the Independent System vote total. Since the alleged majority vote for the amendment in the County System was only 19, either one of these excluded groups would be sufficient to overcome the announced result. Under the rule of the Bryan case, 215 Ga. 661, supra, it is not requisite that the plaintiff allege how the included or excluded votes were cast, but only that there be a sufficient number to affect the result if all had voted one way. Hence, on general demurrer we only require such specificity as will enable the court to determine if there was such sufficient number of excluded electors to overcome the announced result by creating an insurmountable uncertainty. Whether or not allegations of "in excess of 500" or "more than 100" would be sufficient against a special demurrer calling for specific enumeration of excluded voters need not be determined here.
In view of the ruling here made, the argument by the defendants that equity will not intervene to correct mere irregularities is not meritorious.
3. We now consider whether the petitioners were barred by laches. Both in oral argument before this court and in the brief of the defendants in error it is conceded by defendants' counsel that laches may not be asserted against those seeking to enjoin the effect of an unconstitutional law nor where legal votes have been illegally disregarded. See DuPre v. Cotton, 134 Ga. 316 (2) ( 67 S.E. 876). Since we hold that the allegations of the petition were sufficient to show that legal votes were disregarded in sufficient numbers to overcome the announced result so that the amendment was not ratified and hence void, the petitioners would not be barred by the doctrine of laches. See Sellers v. Cox, 127 Ga. 246, 255 ( 56 S.E. 284); Burkhart v. City of Fitzgerald, 137 Ga. 366 (5) ( 73 S.E. 583).
Moreover, here the constitutional amendment and the Act enacted pursuant thereto were not to be effective until July 1, 1965, while the petition was brought on June 2, 1965. Furthermore, while the petition shows that the petitioners knew of the adoption of the amendment, the passage of the Act and the holding of the election for members of the school board, there is nothing to show they were not diligent or failed to act promptly, once, as alleged in the petition, the new board of education "presumed to exercise the authority granted by [the 1965] Act." Under these circumstances, assuming the bar of laches could be applied in a case where one attacks a constitutional amendment as being a nullity, we find no basis to apply the doctrine here.
The trial judge erred in sustaining the demurrers of the defendants attacking the petition on the grounds that the petitioners were barred by laches.
4, 5. Headnotes 4 and 5 require no elaboration.
Judgment reversed. All the Justices concur, except Mobley, J., not participating for providential cause, and Cook, J., disqualified.