Bacon v. Black

162 Ga. 222 | Ga. | 1926

Russell, C. J.

(After stating the foregoing facts.)

1. The petition in this ease contained two prayers, the one for injunction to restrain the consolidating superintendents of the election from recounting the ballots cast by the voters in said election, and the other for mandamus directing the consolidating superintendents to declare the result of the election. Upon the trial of the case before a jury a permanent injunction was granted, but the mandamus was refused. For the reason which will hereinafter appear, no ruling will be in order at this time as to the mandamus or as to the merit of the judgment overruling the motion for a new trial, which in effect complains merely that the trial judge should have granted a new trial because the jury found against the grant of a mandamus and accordingly a mandamus absolute was not issued. The first question arising in the case was presented by the demurrer of the petitioner for injunction to the answer of the defendants. This answer in various paragraphs set up specifically the general contention that when fraud or mistake is brought to the attention of the consolidating superintendents of election returns of the county, they have the right, while the ballots are in their possession, to examine the same, ascertain if the precinct return corresponds with the ballots, if necessary recount the ballots, and correct either fraudulent errors or mistakes, should such be discovered. The plaintiff, by demurrer to the answer of the defendants, insisted that when mere addition of the precinct returns showed Bacon to be elected it was the duty of the superintendents who consolidated the vote of the county to declare this to be the result of the election, regardless of any knowledge of fraud upon their part or of any charges of irregularity or fraud.' In other words, the plaintiff insisted that these superintendents to consolidate the vote of the county have no power in any event to examine the ballots or to alter the result reached and returned by the managers of election at the several precincts of the county, and that such power is accorded only to the tribunal provided by law for the hearing of a contest after the returns have been consolidated and the results declared. The learned counsel for defendants produces several strong arguments in support of the position that fraud in elections should be open to attack at any stage, even the earliest, and well says that the discovery of the true facts with relation to election irregularities would in no way affect or minimize the subsequent right of contest as now provided by law.

However, we feel constrained by the weight of authority to hold that the superintendents who consolidate the vote of a county in county elections have no right to adjudicate upon the subject of irregularity or fraud which will permit them to examine the ballots and review the returns of the district managers in order to ascertain whether the district returns are in fact correct or incorrect. The duties of the managers or superintendents of election who are required by law to assemble at the court-house and consolidate the vote of the county are purely ministerial. The determination of the judicial question affecting the result in such county elections is confined to the remedy of contest as provided by law. The manner of conducting county elections by the superintendents thereof is prescribed in section 82 of the Civil Code. The powers and duties of the board of consolidating superintendents are prescribed in paragraphs 9, 10, 11, and 12 of the same section. By paragraph 7 of said section it is provided that “When the votes are all counted out there must be a certificate, signed by all the superintendents, stating the number of votes each person voted for received; and each list of voters and tally-sheet must have placed thereon the signature of the superintendents.” By paragraph 8 of said section it is provided: “The superintendents of the precincts must send their certificates, and all other papers of the election, including the ballots, under the seal, to the county-site for consolidation.” By paragraph 9 the consolidating superintendents are required to 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; and 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. By paragraph 11 of this section it is declared: “If any voter shall vote who has not paid his taxes, and been registered, his vote shall be illegal, and the commissioners who consolidate their returns of the election shall not count such votes in making out the returns.” By this provision the board of consolidating superintendents must ascertain the number of votes cast for each candidate from the certificates returned by the election managers of each district. They can not go behind these returns, except in the instance specified, that is, where votes have been cast by persons who have not paid their taxes. But even in such eases, it was held in Kemp V. Ventulett, 58 Ga. 419, that this duty was merely directory, and that if any candidate was injured his remedy was by contest, and not by bill in equity. In declaring the result of the election the consolidation managers are governed by the returns made by the superintendents of the several local precincts as to the number of votes cast, and for whom cast; and if these returns be in due form, they have no power to go behind them and ascertain the qualification of the voters, except in the instance specified, or otherwise inquire into the irregularity of the election. Their duty is simply to count the votes of the several precincts, as the same are shown in the certified returns, and declare the result. They have no power to count the ballots themselves. 20 C. J. 200, § 255. Hopkins v. Waycross, 160 Ga. 217 (127 S. E. 862).

The consolidating superintendents had no right • to undertake the recount of all the votes cast in the various precincts, nor even in the single precinct of the 40th militia district. For this reason we are of the opinion that the trial judge erred in refusing to sustain the demurrer, and in not striking so much of the answer of the defendants as set up their right to investigate and recount the ballots. The ruling upon this point being controlling in its character, the remaining proceedings of the trial became nugatory; and for that reason the exception to the denial of the mandamus as presented by the motion for a new trial in the lower court is not at this time presented for our consideration.

Judgment reversed.

All the Justices concur..