Opinion
13607.
JUNE 14, 1941.
Mandamus. Before Judge Jackson. Putnam superior court. November 26, 1940.
W. W. Walker, for plaintiffs in error. D. D. Veal, contra.
Under the allegations of the petition, considered with the exhibits, the claim of two of the registrars of Putnam County as presented to the board of county commissioners, for audit and payment appeared to be a valid claim for per diem services performed by such registrars in making a list of registered voters for the year 1940, any previous list that may have been made during the same year not being a substantial compliance with the law, and being so defective as to require a new and true list.
( a) The object of the several sections of the Code relating to the duties of registrars is to insure and sustain the integrity of public elections.
( b) Under a proper construction of these provisions of law, if registrars should by inadvertence or otherwise fail to make and file with the clerk of the superior court a true and correct list of the registered voters, they would not thereby exhaust their power in the same year to perform such duty.
( c) Although the law declares that if registrars should fail or refuse to complete their work by June 1, they may make and file the list at any time before the 20th day of August during the years in which general elections are held, the fact that the list was not filed until the day of August 20th would not afford ground for denying compensation for their services, where they were otherwise duly performed.
( d) The judge did not err in overruling the demurrer to the petition for the writ of mandamus, and in granting a mandamus absolute requiring the defendant county commissioners to audit the plaintiffs' claim and to issue warrant for the amount thereof.
No. 13607. JUNE 14, 1941.
The members of the board of registrars of Putnam County rendered to the board of commissioners of roads and revenues an account for "fees and expenses of making up a registration list or list of registered voters for said county for the year 1940, in the sum of $159.00, a statement of which has heretofore been presented, and which has been not so far honored, paid, or authorized to be paid by proper order, but which includes the following items: J. T. Jones, 19 days service, $2.00 day, $38.00; J. H. Vining, 16 days, $32.00; John Leonard, 17 days, $34.00. Expense of printing notices and summons, typing list, $23.00. Serving notices and summons by sheriff and officers, $32.00." With this account was a request that the board "issue proper warrant and voucher for payment of the above fees and expenses." Thereafter John Leonard and J. H. Vining, as two of the three duly appointed and qualified county registrars, instituted mandamus proceedings to compel the board of commissioners of roads and revenues of Putnam County to approve and pay the above-quoted bill. The petition contained, among others, the following allegations. H. G. Leverette, N. D. Horton, and B. E. Gooch constitute the board of county commissioners, whose duty it is to pay out of county funds all fees for services performed by the registrars and fixed by law. J. T. Jones, Tom Thompson, and R. E. Vining were duly appointed registrars on March 21, 1940, by the judge of the superior court, and took the oath required of them. R. E. Vining resigned on May 4, 1940, on account of ill health, and died the next day. J. H. Vining was appointed a registrar, on May 4, to succeed R. E. Vining. Tom Thompson resigned on July 25, 1940, and John Leonard was appointed to succeed him. It was the duty of the registrars to make up a list of the qualified voters of the county for the year 1940, in which there was to be held, on November 5, a national presidential election, a general State election, and a general election for all officers of the county. The County Democratic Executive Committee called a county primary for May 21, 1940, and the State Democratic Executive Committee called a statewide primary for September 11, 1940, in which primaries candidates for the November 5 general election were nominated. D. D. Veal, chairman of the county Democratic Executive Committee, on April 15, 1940, requested the then board of registrars to commence their work of making up the list of qualified voters for said election year as soon as possible, so that the list would be available for use in holding the county primary election set for May 21, but the then board of registrars was unable to begin their work until after April 20, by law, and were in fact unable to begin their work until May 8, as they were unable to obtain from the tax-collector the proper list of voters taken from his voters' book and the list of disqualified voters made up by the tax-collector and the ordinary; the clerk of the superior court failing to act in conjunction with the other two officers in making up the list provided for by law. The tax-collector, ordinary, and clerk did not at any time convene for the purpose of making up the list of registered voters and list of disqualified voters, and the board of registrars was never furnished any list of disqualified voters and delinquent taxpayers (poll), after the close of the voters' books on May 6, and the only list furnished to the board of registrars was an "unexpurgated" list of persons whose names appeared upon the permanent voters' books of the county.
No list of disqualified voters, that is, voters who were disqualified because of non-payment of poll-taxes, insanity, conviction of crime, etc., was furnished to the board of registrars after May 6; and the board of registrars were unable to perform their duties as required of them by law, as they could not themselves make up a list of disqualified voters, and could not examine all of the records of the tax-collector's office, in so short a time, in order to determine who was entitled to vote and who was disqualified. The board of registrars were requested by D. D. Veal, chairman of the Democratic Executive Committee, to make the list up as best they could, and file the best list possible in the clerk's office, so that the same could be copied and properly certified for use in holding the May 21 primary election; and following this request, the board of registrars went over the lists furnished to them by the tax-collector, and marked off some thirty names, and cut out such duplications as appeared thereon, eliminating so far as possible in the time available the names of decedents and those removed from the county. The list thus prepared was certified and filed on May 20, 1940, the day before the primary election, it having been in the hands of the printer since about May 15. The board of registrars, after filing the list aforesaid, abandoned the work of completing the list of qualified voters, saying that they would not go into that work again unless requested to do so by parties interested; but numerous citizens of the county urged the board of registrars to go back to the work of making up the list. Numerous complaints of irregularities in the list of voters were circulating around the county; and finally, the board of registrars decided to go back to work on the list about the middle of June, but were unable to make any headway because of the failure of the tax-collector to furnish the required list of disqualified voters; and it was on July 30 that a list of 251 names of disqualified voters was furnished to the board of registrars by the tax-collector and the ordinary. One of the members of the board of registrars, Tom Thompson, having resigned on July 25, petitioner John Leonard was appointed to succeed him, taking the oath of office on July 27, and commencing work on July 29, after which time the board of registrars worked continuously until August 20, in an effort to complete their work. They were instructed by the judge of the superior court to send out notices to all whose right to vote was questioned, which they did; and they performed services and incurred expenses for service of papers and summons by the sheriff and officers, as set forth in exhibit A, the total being $159, and on August 20, 1940, the present board of registrars, including petitioners Leonard and Vining, completed their work and filed their list of qualified voters in the office of the clerk of the superior court, and immediately delivered the above-quoted statement of the expense of making up the list to the board of commissioners, which respondents refused to pay petitioners for their services and for the expense incurred in preparing the list of qualified voters. The list prepared and filed for the county primary, held on May 21, contained over 1800 names, but 400 names were stricken from the list before filing on August 20, after the board of registrars had been able to properly correct the same. These irregularities, and the complaints that had been heard regarding the list, were brought to the attention of the judge of the superior court, and an order was passed by him, acting in his supervisory capacity over the board of registrars, expunging the first list of voters as void, and ordering that the board of registrars file in lieu thereof the new and corrected list, extending the time until August 20 in which to complete their work. A copy of the order was attached, marked exhibit B.
The defendants interposed a demurrer on the grounds: (1) That the allegations show no cause of action against the respondents, and there is no cause of action set out in the petition. (2) The petition does not set out any matter warranting a mandamus, and upon the allegations the plaintiffs are not entitled to a rule absolute as prayed. (3) The petition shows on its face that the board of registrars filed with the clerk of the superior court a certified registration list on May 20, 1940, for that election year, ten days prior to June 1, the legal deadline, without an order of court. (4) There is no provision of law authorizing a board of registrars, with or without an order of court, to file a second certified registration list within one election year, as alleged in the petition. (5) The judge of the superior court has no authority over the board of registrars, other than to appoint an additional board or boards so as to complete the work by June 1 of the particular election year, and he may extend the time to August 20 of that year upon proper application by the board of registrars at the proper time and before a certified list is filed by the board. Both the powers of the judge of the superior court and the board of registrars were exhausted when the first registration list was filed on May 20, 1940.
The exception is to a judgment overruling the demurrer and granting a mandamus absolute.
Two of the three members of the board of registrars for the County of Putnam, in their individual and official capacities, instituted mandamus proceedings against the county board of commissioners of roads and revenues, to compel approval, and an order for payment out of funds in the county treasury, of an account for prescribed fees and other expenses incurred in preparing an official list of registered voters that was filed with the clerk of the superior court on August 20, 1940. The judge overruled a general demurrer to the petition. On consent of the parties the case was submitted on the pleadings without introduction of other evidence. A mandamus absolute was granted. The respondents excepted, error being assigned on both rulings of the judge. The Code, § 34-301, provides for biennial appointment of registrars, "for a term of two years and until their successors are appointed and qualified," by the judge of the superior court of each county. "The registrars shall, in each year in which a general election is to be held, meet on the 20th of April, . . and begin the work of perfecting a true and correct list of the qualified voters of their county." § 34-401. "The registrars shall proceed with their work and complete the same not later than June 1. . . Should the said registrars for any cause fail or refuse to make up and file said list of registered voters within the time required by law, then the said registrars may, at any time before the 20th day of August during the year in which general elections are held, make and file such list of registered voters." § 34-403. Supplemental registration lists are provided for (§ 34-406), and additional lists (§ 34-407). "The board of registrars shall have the right and shall be charged with the duty of examining each two years the qualification of each elector whose name is entered on the voters' books, and shall not be limited or stopped by any action taken at any prior time." § 34-408. "For each day the county registrars may be actually engaged in the discharge of their duties, they shall each receive the sum of $2. All of said sums shall be paid out of the county treasury as other county bills are paid. . . The cost of the voters' books and of printing the lists provided for shall be paid out of the county treasury as other county bills are paid." § 34-1001.
The object of the foregoing provisions of law, considered with others in the same title, is to insure and sustain the integrity of public elections, whether they relate to the holding of office or to ascertainment of result on questions depending on submission to popular vote. This is so whether the elections be general, local, or for some special purpose. There is no such thing as exhaustion of duties of the registrars, based on mistake or improper performance. They should not certify a false list of voters. The law imposes prescribed duties on the registrars throughout their terms, and contemplates the performance of such duties in respect to all elections that may take place in the county during their terms. It could not have been the legislative intent to provide for the filing of a list of voters which in fact is untrue. Such would be contrary to the declared purpose of purging the names of all persons registered who are not qualified to vote. The law as set forth in the Code, supra, does not declare expressly or by necessary implication that the registrars may not during the same year revise an untrue list of voters that may have been inadvertently certified and filed, or that they may not in lieu thereof make a new list excluding names of persons not qualified to vote that were contained in the first or untrue list. Neither does the law contemplate that such revision of the untrue list would be without the power of the registrars unless done "before" the 20th day of August. On the contrary, in view of the legislation, the provisions of the cited Code sections are to be construed as imposing a duty on the registrars at any time during their administration, upon discovery of a mistake of themselves or of their predecessors in certifying an untrue list of registered voters, to proceed to correct it. The registrars' terms of office being two years and until their successors are appointed and qualified, they have the power and duty to function according to law during their terms, and would not lose such authority merely because an untrue and imperfect list of voters may have been made and filed at any time.
Without resort to the order of the judge, and whether or not he had authority to pass the same, the statute imposed upon the registrars the duty of making a true and complete list of the registered qualified voters for the year in question; and under the allegations of the petition it appeared that when the registrars entered upon the service for which the present claim was made, no previous registration list had been made for the year in substantial compliance with the law. Accordingly, the list for the making of which two of the registrars are now seeking compensation amounted in effect to the first and only lawful list of the registered voters made during the year. The petition further shows that the present petitioners as registrars were not responsible for the defects in the so called first list, they having come into office later; and whether or not payment had been made to the registrars who made the former list, the two registrars who are now seeking compensation for their services in making an alleged true and correct list appeared to be entitled to the relief sought.
It is not decided that registrars would be authorized during a single year to make two true and correct lists of the registered voters and to charge the county for making both lists. According to the petition, the plaintiffs are seeking compensation for making what appears to be the first and only true and correct list. The fact that the petition alleged the second list was filed on August 20th, whereas the Code, § 34-403, provides the registrars may file such list, "at any time before the 20th day of August," would not, in view of other allegations, authorize denial of the compensation provided in § 34-1001, it appearing from the petition that the services of the registrars were otherwise properly performed. In Howell v. Bankston, 181 Ga. 59 ( 181 S.E. 761), it was held: "Under constitutional and statutory provisions, county commissioners are authorized to pay, from general county funds, the costs of county registrars in preparing lists of voters." The judge did not err in overruling the defendants' demurrer and in granting a mandamus absolute.
Judgment affirmed. All the Justices concur.