| Ga. | 1879

Jackson, Justice.

1. The application for leave to file the quo wananto rests purely upon the title of Collins to the office of mayor of Macon by virtue of the election the legality of which he attacks. He shows no interest in the office as a citizen or otherwise on the face of the application. His prayer is that Huff, filling an office to which he is entitled, be ejected, and that he, Collins, be installed ; and his allegation is that he is entitled because he was elected at the election held on *209the 14th of December, 1878, and in the same paper it appears that Huff had been the prior incumbent, and therefore, by virtue of the charter, held over, if not lawfully reelected, unless another had been so elected.

Under such circumstances, so set out in his petition, he cannot assail the whole election as void, because in so doing he destroys the only title he has to the office, and the only Interest which he alleges that he has therein. Hence those grounds which assail the entire election as illegal are demurrable and cannot be considered. The King vs. Cudhiff, 6 Term R., 508; 2 Term, 771; 4 Term, 687.

This disposes, therefore, of the allegations of want of ■notice and proper registration which, if true and sufficient in law to have any effect, would defeat the whole election and leave Huff holding over and in office until a successor Is elected. Code, §3203 ; 44 Ga., 495.

2. But it is alleged that there were two hundred and fifty Illegal votes cast which defeated him and elected Collins. This allegation as set out in the petition is also demurrable. It is too general. No issue can be joined on it, nor can the •court pass on it intelligently. Ten reasons are given why these votes are illegal, or the voters are divided into ten classes — some non-residents, others not twenty-one years of •age, others not naturalized, others not having paid taxes, .and so ou.; and yet it is not alleged how many of the two hundred and fifty voted illegalty because they were too young, or non-residents, or had not paid taxes, and no man who had voted illegally is named — not one. Suppose the court should hold tliat all the classes, nine of them did vote illegally, but the tenth did not, still no judgment could be ■rendered in favor of the applicant unless the nine classes ■embraced voters enough to change the result of the election .as declared by the managers. That result gave Huff one hundred and twenty-nine majority. It was absolutely necessary, therefore, to show more than that number of illegal votes. If, then, it were held that payment of taxes not actually demanded did not disqualify, or that the registry con *210eluded that question, and nobody registered could be disfranchised on that ground, and if two hundred' of the two-hundred and fifty voters charged to be illegal for some of the ten reasons, were embraced in the class of non-payers of taxes, then Iiuff would still be elected by legal votes. So that it is essential to set out how many voters belonged to each illegal class. It would have been better, too, to set out their names, and to make distinct and clear specifications issuable as required in all our suits — -plainly and distinctly setting out the cause of action — so that the other side might know what he had to meet. In this case not an illegal voter is named, and the number illegal on any specific ground is nowhere given. The allegation is wholly insufficient in law, and the judge was right to hold it to' be soy and to refuse the motion to file on this allegation.

3. The remaining allegation is made in the amendment. It attacks the election at two of the polling places on the ground that at one of them .one of three managers was not a freeholder, and at the other two were not. But they were all regulai’ly appointed by the city council, and were de facto- officers. No allegation is made of fraud in the appointment, or of collusion with Huff. No voter was rejected or allowed to vote illegally at either of these two> places, so far as the allegation discloses what transpired. The managers acted' fairly and leg-ally, so far as appears. Both candidates participated in the election at these placesy and both got votes, and neither made complaint until after the result, and long thereafter. The judge, therefore, did not abuse his discretion in rejecting the motion on this allegation ; for the law rests a discretion in him. 45 Ga., 495. Un the contrary, it would have been abused, perhaps, if he had thrown out these two polling places, which embraced two entire wards, and let the others decide the election. All he could properly have done would have been to set aside the whole election aud order a new one; and that he could not do, because thereby Collins’ only title was defeated whenever the whole election became invalid and was-set aside.

*211This case is unlike the Jonesborongh case. Hawkins vs. Jonesborough, decided this term. There the town council appointed some of themselves to assess property for taxation.

It is rather like the case of Hussy et al. vs. Gallagher et al., 61 Ga., 86, where the parties complaining of irregularities participated in the election and were held to be estopped.

On the whole, we do not see how the judge could have done otherwise than to reject the motion to file the application, and the judgment is affirmed.

See, cited for plaintiff in error, Code, §1334; charter Macon, §12 etseg.; 70 Ill., R, 25; 14 lb., 476; 4 Tenn., 223; 4 Cowen, 103 and note, 383; High on Ex. Rem., §§738-53, 607, 621, 629, 691; Code, §3203; aets 1871, p. 118 ; Cons., art. 11, sec. 1, par. 1; art. 12, par. 5 ; art. 11, sec. 11, par. 1; Cooley, 601; Johnston et al. vs. Macon, last term ; Walker vs. Collins, last term; City Code, §17; act September 30, 1870 ; Code, §1334; Cooley Cons. Lim., 603, note; 20 Ga.. 746 ; Brightly’s Lead. Cases in Eq., 480.

For defendant in error, McCrary on Elec., §§281, 282, 115, 264, 266, 278, 276, 277 ; 44 Ga., 495 ; Brightly’s Elec. Cases, 466, 467, 276, 452, 448, et seq.; Dillon Mun. Corp., 136; Cooley Cons. Iim., 621, 203; 3 Cal. R., 480; 7 Ala,, 114; act 11th Dec. 1871; 33 N. J., 195 ; 12 Mich., 508; 15 Ohio St., 137; 2 Tenn., 771; 4 Ib., 687; 6 Ib., 508; Const, of ’77, art. 1, sec. 1, par. 2; 8 N. Y., 89; 14 Barb., 259; 5 Hill, 616; Code, §1334; 6 B. & Cress., 240; 61 Ga., 91; 28 Penn. St., 9 ; 35 75., 263; 45 lb., 396; 44 Ib., 332; 15 Ohio, 114; Code, §§1329-1334; 33 N. Y., 198.

The answer not being sworn to, is not considered except as a demurrer.

Judgment affirmed.