103 Ga. 816 | Ga. | 1898
Plaintiffs in error, as “citizens and freeholders” of the county of Early, residing in the 1140th militia district, pe
The question presented for our consideration is, can the ordinary be by mandamus compelled to entertain and pass upon a contest with reference to the result, of an election held for the purpose of determining whether the provisions of the stock law shall become operative in a particular militia district or not? Unless the law makes provision for contesting such an election and constitutes the ordinary a tribunal for the trial and determination of the contest, it is very clear that this question must be answered in the negative. It is entirely discretionary with the legislature whether or not it will provide a statutory method for contesting the result of an election; and unless it clearly appears that it has done so, such a method does not exist. The ordinary of a county certainly has no power to hear and determine the questions raised by a contest over an election, unless it has been conferred upon him by some statute of the State. The sections of the code which relate to elections on the fence question make no mention of a contest over the result of such an election. Both section 1777 and section 1778 of the Civil Code, the first providing “ the terms and conditions ” upon which the stock law shall become operative in a county, and the second “the terms and conditions” upon which it shall bécome opera
Besides this, all the duties which the statute imposes upon the ordinary in connection with these elections are such as would seem to precede a contest, if one were allowed. For he examines the returns and decides all questions which may arise out of the election, before he proclaims the result of the election, and until the result is declared no contest can be instituted, —■ until then it is not legally known how the election went. Stone, J., in delivering the opinion of the Supreme Court of Alabama, in Echols v. State, 56 Ala. 136, said: “While, under the act ‘to establish a new charter for the city of Opelika,’ the city council are authorized to examine and count the votes; are made judges of the election, with full power to determine all matters in relation thereto, to ascertain the legality of voters, to reject illegal votes, to take testimony, examine witnesses, send for persons and papers, and to decide who are the legally elected mayor and aldermen of the city, yet there is nothing in the statute which gives to this proceeding the form, solemnity, or sanction of a contested election ; no provision for instituting any such investigation by any dissatisfied elector, and nothing
As the alleged right to contest the election is based entirely upon the construction of the statute, and as a statutory right to make such a contest must be clearly conferred by the legislature before it can be said to exist, we do not think the plaintiffs in error make out their case when they exhibit, as the only foundation upon which they rest their alleged right, a statute which does not expressly authorize a contest and which contains no provisions whatever for setting in motion, or regulating, in any particular, such a proceeding. In the case of Meadows v. Taylor, 82 Ga. 738, this court held that “The statuteproviding for elections respecting fences and stock law in and for a single militia district, makes no provision for a counter-petition, or for any contest or hearing before the ordinary.” This ruling would be decisive of the present case, were it not for the fact that the question whether or not the statute authorized a contest over the result of such an election was not directly involved in that case, the question which there invoked the ruling of the court being, whether or not the statute made provision for a counter-petition. But both the headnote and the opinion of the court, delivered by Chief Justice Bleckley, .show that the learned Justices then composing this court placed the same construction upon the statute as that which leads us to hold that it does not authorize a contest over the result of an election held under its provisions. It follows that the judge was right in holding that mandamus would not lie to compel the ordinary to entertain and decide such a contest.
Judgment affirmed.