159 Ga. 185 | Ga. | 1924
W. Y. Nash filed a petition against G. G. Robinson as ordinary of Gwinnett County, and alleged substantially the following : The ordinary of a county is made the official to hear and determine the questions involved in a contested election of the character hereinafter set. out. On August 18, 1923, a purported election for trustee of Snellville consolidated school district was held, in which election plaintiff and M. L. Hornbuckle were the candidates voted for. M. L'. Hornbuckle received a majority of the votes counted, and ivas declared elected. The election was illegal, null and void; and for the purpose of determining the same the plaintiff filed his contest before the defendant as ordinary, on September ’5, 1923, and the case was set for a hearing on September 14, 1923. The defendant failed and refused to hear the case, declaring that he had no authority under the law to determine it, and, upon motion of counsel for M. L. Hornbuckle, passed the following order: “The foregoing petition coming on to be heard, after consideration of the motion of counsel for defendant, the same is hereby dismissed for ivant of jurisdiction, and judgment is rendered against plaintiff for $7.50 cost of suit.” The defendant is ordinary of the county, and as such it was his official duty to hear and determine the question raised in said petition. Plaintiff has a legal right to have said question determined, and he has no other specific legal remedy except by Avrit of mandamus. He prays for mandamus nisi; and that on the hearing the mandamus be made absolute, and the defendant required to hear and determine the question
The sole question to be determined in this case is whether or not the election contest should have been heard and determined by the ordinary of the county or by the board of education of the county. The Civil Code (1910), § 125, provides that “Whenever any contest arises over an election of any constable, municipal officers, or other officers not hereinbefore provided for, the same shall be file’d 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,” etc. We are of the opinion that a school trustee for the Snellville consolidated school district, for which an election was held on August 18, 1923, is an officer within the meaning of the words “or other officers not hereinbefore provided for,” as contained in the section of the code quoted above (compare Stanford v. Lynch, 147 Ga. 518, 94 S. E. 1001); and that the ordinary of the county would have jurisdiction to hear and determine any contest arising over an election of such officer, unless of course there is some other provision of law which takes from the ordinary the jurisdiction to hear and determine such contests. The defendant in error insists that the ordinary of the county has no such jurisdiction in the present case, and this view was also entertained by the trial judge, who evidently based his decision upon the act of 1919 (Acts 1919, p. 324, 8 Park’s Code Supp. 1922, § 1437j), which provides that “The county board of education shall constitute a tribunal for hearing and determining any matter of local controversy in reference to the construction or administration of the school law, with power to summon witnesses and take testimony if necessary; and when they have made a decision, said decision shall be binding upon the parties. Either of the parties shall have the right of appeal to the State School Superintendent, and said appeal shall be made through the county superintendent in writing, and shall distinctly set forth the question in dispute, the decision of the county board, and testimony as agreed upon by the parties to the controversy, or, if they fail to agree, upon the testimony as re
In view of the foregoing we are of the opinion that the learned trial judge erred in refusing to make the mandamus absolute.
Judgment reversed.
