178 Ga. 54 | Ga. | 1933
On December 13, 1932, an election was held for mayor and councilmen in the City of Hoschton, in which 0. T. McDonald as candidate for mayor and named persons as candidates for councilmen were opposed by A. L. DeLaPerriere as candidate for mayor and named persons as candidates for councilmen. The election managers made their returns, and on December 14 these returns were duly canvassed by the existing mayor and councilmen according to the charter of the city, and DeLaPerriere and those on his ticket as candidates for councilmen were declared elected, and record thereof was duty entered upon the minutes of council. On January 1, 1933, they were inducted into office. Prior to this McDonald and those on his ticket as candidates for councilmen, on December 17, 1932, gave notice of contest before the ordinary. The contestees appeared before the ordinary and demurred to the sufficiency of the notice, and otherwise participated in the trial of the contest. On January 30, 1933, the ordinary rendered a decision stating that after hearing evidence in the case, and after examining and counting the ballots as provided in section 125 of the Civil Code, he found that a stated number of illegal challenged votes were cast for the respondents and a stated number of illegal challenged votes were cast for the contestants; and after Setting off one against the other, the contestants received a stated majority of the legal votes, and therefore were declared duty elected as mayor and councilmen. After this decision by the ordinary, the contestants, McDonald and his board of councilmen, instituted quo warranto proceedings against DeLaPerriere and his board of councilmen, to oust them from office and have themselves declared to be the duty elected mayor and councilmen. DeLaPerriere and others answered and set up that under the facts, substantially as stated above, the judgment of the ordinary was void, because (a) on the trial the notice of contest did not state and no evidence was introduced to show for whom illegal votes were cast; (b) that the ordinary considered evidence illegally obtained, in that more than
Contests of elections for municipal officers must “be filed with, heard, and determined by the ordinary of the county wherein .such contest may arise, under the same rules and regulations as to the mode of procedure as prescribed in contests where commission is issued by the Governor.” Civil Code, § 125. Cutts v. Scandrett, 108 Ga. 620 (34 S. E. 186); Harris v. Glenn, 141 Ga. 687 (81 S. E. 1103). The authority so conferred upon ordinaries to hear and determine contests arising out of elections for municipal offices is limited, and the ordinary has no power other than that conferred by the statute. Simpson v. Rimes, 141 Ga. 822 (82 S. E. 291); Walton v. Booth, 151 Ga. 452 (107 S. E. 63); Norwood v. Peeples, 158 Ga. 162 (122 S. E. 618); Chapman v. Dobbs, 175 Ga. 724 (166 S. E. 22); If in such election-contest cases the ordinary acts without the scope of his powers, his decision is void. Simpson v. Rimes, Walton v. Booth, supra. Under the “same rules and regulations” referred to in the Civil Code, § 125, “Such contest shall be begun by giving the adverse party five days’ notice in writing,, stating the grounds of contest, the time and place where the contestant intends to take testimony, and the judicial officer before whom the testimony will be taken” (§ 121, par. 2); and-“Any judicial officer of the county where the testimony is taken may preside, to preserve order, to swear witnesses, to see that the testimony is fairly and impartially taken and reduced to writing. Said officer shall have power to subpoena witnesses and compel their attendance, if in this State, and to issue commissions to take testimony of persons out of this State, and to adjourn from day to day: ' provided, all testi
The other headnotes do not require elaboration.
Judgment affirmed.