108 Ga. 132 | Ga. | 1899
It appears from the petition of J. L. Crawley, that on the first Saturday in January, 1899, an election was held in the city of Way cross for a mayor and five aldermen, to succeed like officers elected at the preceding annual election. A. M. Knight, the then incumbent of the office of mayor, and petitioner were candidates. Two polling places were open, one at the court-house and the other at the opera-house, they being ■the two election precincts in said city. At the opera-house precinct petitioner received 14 votes, and the other candidate for mayor received 242. At the court-house precinct petitioner received 82 votes, and his competitor for the office 56. After ihe election the managers who conducted the same at the two precincts met at the court-house in the city, for the purpose of •consolidating the vote cast. At this meeting the managers were informed that J. T. Beaton, who assisted in holding the election at the opera-house, was neither a freeholder nor an ■officer, and was consequently disqualified from holding an •election; whereupon Beaton refused to join in the consolidation of the vote cast at the opera-house, it being decided that the election at said precinct was void because not held by three persons qualified to hold such election, as required by law. Thereupon the managers of the election held at the courthouse precinct issued a certificate of election to petitioner, based upon the vote cast at that precinct alone. After this ■certificate was issued, the managers of the election held at the ■other precinct came together at the court-house, consolidated the vote, and issued a certificate of election to Knight as mayor •of the city. Upon this Knight claimed to be elected mayor, .and took the oath of office with the others who were elected .aldermen. Petitioner claimed that he, having received a majority of the legal votes cast at the election, was duly elected to the office for the ensuing term, and he prayed for leave to file information in the nature of a writ' of quo wTarranto, as being legally entitled to the office of mayor of the ■City of Waycross, and by virtue of said writ to inquire into the right of Knight to said office, the duties of which he was then in fact unlawfully discharging. A rule nisi was prayed .against Knight as defendant, which was accordingly issued by
We have culled from the record the above, as all the material facts necessary to clearly understand and adjudicate the issues involved in this case; and the simple statement of those facts contains in itself a sufficient argument to sustain the validity and justice of the decision of the court refusing the prayer of plaintiff’s petition. Manifestly,- under the -facts de
It is unnecessary in this connection to consider the minor question raised by counsel for plaintiff in error, as to whether or not the certificate of election under which the respondent
Under § 4880 of the Civil Code it is provided, in effect, that upon the return of the petition for quo warranto, in case of a ■denial on oath by the defendant of the facts alleged in the petition, it becomes the duty of. the judge to fix a time for the hearing, and draw a jury of twelve men to try the issue of facts. The petition and answer in this case did present issues of fact, particularly on the main question involved, as to whether ■one of the managers of the election was a freeholder. The .statute does not seem to contemplate a preliminary hearing of testimony by the judge on such an issue without a jury.' But no question touching the illegality of the judge’s action on this account is made in this case. On the contrary both plaintiff and defendant introduced, without objection, evidence before the judge, by affidavits. In the light of this testimony, there being no material conflict in it, plaintiff’s right of action became a question of law; and the court properly adjudged he was not entitled to the relief sought.
No question was made, either in this court or in the court below, as to whether or not plaintiff’s exclusive remedy for the relief sought was to institute proceedings to. contest the election before the ordinary, under § 111 of the Political Code; and hence that question is not decided. If such contest before the ordinary is the proper remedy, and not quo warranto, then-this would be an additional reason why there was no error in refusing the prayer of petitioner.
Judgment affirmed.