38 S.E.2d 176 | Ga. Ct. App. | 1946
The action of the ordinary in ascertaining and declaring the result of an election held under chapter 58-10 of the Code (Ann. Supp.), to determine whether the manufacture, sale, and distribution of alcoholic beverages and liquors in the county shall be permitted or prohibited, is ministerial and administrative, and not judicial, and is not reviewable by writ of certiorari to the superior court, and the judge did not err in refusing to sanction the writ.
The Code (Ann. Supp.), § 58-1006, is as follows: "The returns of the election held hereunder shall be made within three days after the election to the ordinary who shall ascertain and immediately declare the result after the receipt of the returns." Are the duties thus imposed upon the ordinary judicial or quasi-judicial in their nature and general character, or are they merely ministerial, executive, or administrative? If the ordinary acted judicially in receiving the returns and in determining and declaring the result of the election, her action is subject to review by certiorari; but if she acted ministerially, or in an executive or administrative capacity, the writ will not lie to test the legality of her action.
It is well-settled that as a general rule the writ of certiorari lies to correct errors of inferior courts and officers acting judicially only; and the writ will not be issued to officers whose functions and duties are ministerial, executive, or legislative, and not judicial. See Mecham on Public Offices and Officers, p. 666, § 1001. "The fact that a public agent [or official] exercises judgment or discretion in the performance of his duty does not make his action or his functions judicial." Id. 668, § 1005. "It is difficult, if not impossible, precisely to define what are judicial or quasi-judicial acts, and there is considerable conflict in the decisions in regard thereto, in connection with the law as to the right to a writ of certiorari. It is clear, however, that it is the nature of the act to be performed rather than the office, board, or body which performs it, that determines whether or not it is the discharge of a judicial or a quasi-judicial function." 11 C. J. 121, § 68. A judicial action has been defined as "an adjudication upon the rights of parties who in general appear or are brought before the tribunal by notice or process, and upon whose claims some decision or judgment is rendered." In re Saline County Subscription,
These general rules of law have been recognized and applied *665
by Georgia courts. In Meadows v. Taylor,
In Allied Mortgage Companies Inc. v. Gilbert,
The court properly refused to sanction the certiorari for another reason. Elections are under the political branch of the government, and ordinarily are beyond the control of the judicial power; and until the courts are beyond the control of the judicial power; and until the courts are empowered to act, they will refrain from interference. Harris v. Sheffield,
The cases cited and mainly relied on by counsel for the plaintiff in error are Mayor c. of Macon v. Hughes,
Judgment affirmed. Sutton, P. J., and Felton, J., concur.