179 Ga. 540 | Ga. | 1934
S. G. Young filed Ms application for permission to file an information in the nature of quo warranto, alleging substantially as follows: He is a citizen and taxpayer of Gordon County, and was duly elected tax-commissioner on April 20, 1933, when an election was held to fill a vacancy in said office. In said election relator received a majority of the votes cast, which fact was duly certified according to law. Notwithstanding this, T. L. Hender
The defendant demurred on the grounds, among others, that the petition failed to set forth a cause of action; that it did not show title to the office in Young; that it set forth mere conclusions of the pleader; that it failed to allege that Young was eligible for the office, and failed to show any authority in the Governor to issue a commission to him.
The court overruled the demurrer, and the respondent excepted. He filed his answer and denied the substantial allegations of the petition. He admitted that he had been commissioned by the Governor to fill the office, that he had given bond and taken the oath of office, and that he had performed the duties and functions of the office and was receiving the emoluments thereof. He averred that the alleged consolidated returns declared on by Young were spurious and not genuine, and were the act and deed of some unauthorized person or persons; that the people whose names appear thereon did not sign it, and there had never been a legal consolidation of the votes of Gordon County on April 21, but on that date only three out of fourteen precincts of the county were represented, and no legal quorum of the election managers was present; that the names appearing on the alleged returns were placed there by W. R. Rankin, who was not a manager, and who had no authority to have
The ruling in the first headnote needs no elaboration.
The court did not err in overruling the general demurrer to the petition. The information in the nature of quo warranto was a proper proceeding to decide the question of the right to the office as between Henderson and Young. In Hathcock v. McGouirk, 119 Ga. 973 (47 S. E. 563), it was said: “An application for leave to file a quo warranto, reciting that at an election for sheriff of a named county, held on a given day, the applicant received a majority of the votes east, which fact was duly certified by the proper authorities; that, notwithstanding, his opponent was given a commission by the Governor of the State, under which he took possession of the office and was exercising the privileges and receiving the emoluments thereof, without lawful authority and in utter disregard of the rights of the applicant; and that the term of office for which applicant was elected has not expired, etc., is not demurrable on the ground that the application does not set forth a cause of action, or on the ground that the superior court of that county is without jurisdiction to entertain the same, or on the
Other decisions to the same effect might be cited; and in view of those decisions and other reasons for the ruling, we are of the opinion that there is no merit in the general demurrer. The case was fully set out and the essential facts alleged, and the court did not err in overruling the special grounds of demurrer.
It is not necessary to take up all the grounds of Henderson’s response, or to rule upon each one of them; but certain of them were meritorious and should not have been stricken. We refer to those grounds as meritorious which show that the first purported consolidation of the return made by the superintendents of the election on April 21 was not in conformity to the statute and was
We do not question the soundness of this decision; but if the allegations contained in the response in regard to this matter are true, then the first purported canvass of the returns was no consolidation at all. It was not done by a majority. According to the response, the duty prescribed by the Code section^ supra, was not fulfilled, and the purported consolidation amounted to nothing. There was evidence to show that a majority of the superintendents of the election did not meet on April 21 and comply with the requirements of the section just referred to. Evidence was offered to establish the fact that there was no compliance with that section by the superintendents of the election on April 21. Judge Rankin was introduced by Young, and on cross-examination he testified: “But there were at the time of the election, on the 20th day of April, fourteen different polling-places.” Again, he testified: “I signed thereto [the election certificate in controversy] the signatures of J. E. Hardy, W. H. Jones, I. F. Taylor, W. H. Chitwood, M. M. Scott, and R. C. Fuller. . . C. J. Hopper, I believe I signed his name. He wasn’t there.” The superintendents signing the consolidated returns on the 21st of April were J. H. Gordon, T. J. Champion, J. E. Hardy, W. A. Jones, B. F. Whittemore, O. J. Hopper, I. F. Taylor, W. H. Chitwood, Kay Nelson, J. W. C. Roberts, C. D. Shaw, G. D. Bandy, M. M. Scott, R. S. Reeves, F. H. Fuller, and J. H. Bramlett. Rankin further admitted, on cross-examination, that he did not see Bandy, Roberts, or Nelson do anything towards consolidating this vote. Nelson testified that he did not participate in the consolidation, but did sign a blank piece of paper which was later filled out. Bramlett testified: “I did not in any manner participate in the canvassing or consolidating them, counting the result.” Bandy testified: “I did not examine any of the precinct returns, or have anything to do with canvassing or counting the result, or assent to that.” Roberts testified: “I did not inspect or examine or canvass, or count any other precinct at all. I did not see them. I had nothing to do with the consolidating or adding or canvassing of any votes, except my own. I say I did sign my name to a blank piece of paper.” There was other evidence tending, to show that the