158 Ga. 162 | Ga. | 1924
Lead Opinion
1. The contest of a mayor’s election 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 (1910), § 125.
2. Under said rules and regulations, “ 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.” Civil Code (1910), § 121(2).
3. Procedure by petition addressed to the ordinary, with prayer that notice of the contest be served instanter upon the adverse party, that the latter show cause at the office of the ordinary on a named day, if any he could, why the prayers of the petition should not be granted, and why the votes east by certain named parties should not be excluded from the ballot-box, a recount be had, and the lawful result of the election declared, was not in accordance with the above rules and regulations, and was not such a contest of the election as is provided and required by these rules and regulations.
4. If such petition could be treated as a substantial compliance with such rules and regulations, allegations therein, that the election was illegal and void for the reason that 35 named women voting in said election for mayor were not legal and qualified voters, because they had not paid their poll-taxes for the year 1922, for which reason said votes should be excluded from the ballot-box, and the legal votes remaining therein be recounted so as to actually declare the result, and wherein the contestant alleges upon information and belief that when said illegal votes have been removed from the ballot-box, and the true and correct result of the election declared, he will be the person duly elected and entitled to hold the office of mayor for the ensuing year, are too loose and general
5. Where in response to the order of the ordinary, issued upon the presentation of said petition, the contestee appeared and made a motion to strike said petition on the ground that it set forth no valid and legal grounds for contesting the election, the ordinary did not exceed his jurisdiction in entertaining said motion, in sustaining the same, and in dismissing the petition. Paulk v. Lee, supra. Nothing to the contrary of this ruling is to be found in Simpson v. Rimes, 141 Ga. 822 (82 S. E. 291), in which this court held that in such a contest the ordinary had no authority to consider the right of a person to vote who did not vote, and, upon concluding that he was illegally deprived of voting, to render a judgment deciding that the contestant was duly elected, based on a count of such assumed vote; nor in Walton v. Booth, 151 Ga. 452 (107 S. E. 63), in which this court held that in such a contest the ordinary had no jurisdiction to entertain a question as to whether the election itself, out of which the contest grew, was void. In those cases the ordinary exceeded his jurisdiction; but in the insi.ant case he had the power and authority to determine whether, under the facts embraced in this petition, the contestant made a case which authorized a contest of the election.
6. Where the ordinary rendered judgment sustaining the motion of the contestee to dismiss the petition, on the ground that it set out no ground of contest, and where such judgment was correct, the judge of the superior court, on application by contestant for mandamus, erred in granting a mandamus absolute, requiring the ordinary to hear the contest.
Judgment reversed.
Dissenting Opinion
dissenting. 1. The majority of the court, in the third lieadnote, hold that the petition addressed to the ordinary “was not such a contest of the election as is provided and required” under the law. Only one defect in the petition addressed to the ordinary is pointed out, to wit: in the second headnote it is pointed out that the Civil Code (1910), §121 (2), requires five days’ notice in writing to the contestee of the time' and place where the contestant intends to take testimony and the judicial officer before whom the testimony will be taken. The contestee makes no complaint of a failure on the part of the contestant to give due notice. If there had been such failure, it would seem that the contestee, desiring to avail himself of that defense, would have pleaded it. On the contrary he appeared before the ordinary and interposed a general demurrer and filed an answer, without making any mention of a failure to receive due and legal notice. The petition for mandamus alleges, in regard to the petition for contest filed with the ordinary, that “after due service on the said J. Y. Talley the contest came on to be heard at the place and time set as prescribed by law,” and that the said ordinary refused to hear said contest, “solely upon the ground that the mayor and council' of the City of Nashville had not been served with notice of petitioner’s intention to contest said election.” The statute does not require notice on the mayor and council. The order of the ordinary shows that he dismissed the petition for grounds other than lack of service. If in fact a copy of the petition was served on the contestee, of course this copy gave him full notice of the time and place of the hearing, as provided in the Civil Code (1910), § 121 (2). Moreover, counsel for the contestee does not mention, in his brief before this court, lack of due and legal notice. It would seem, therefore, that the ruling now made in regard to lack of proper notice is without sufficient basis to authorize it. On the contrary it would seem reasonable that there must have been full compliance with such requirement, and therefore no issue on the question. The eases cited in the majority ruling have reference to § 1546 of volume 1 of the Code of 1895 —local-option statutes. The notice there required is notice to the ordinary of a contest proceeding in the superior court. In such a case it was held that where the petition to the superior court was served on the ordinary, this was sufficient compliance with the
2. The majority rule that the petition addressed to the ordinary was not sufficient to constitute a contest under the Civil Code (1910), § 125; and as authority the following cases are cited: Collins v. Huff, 63 Ga. 207; Jossey v. Speer, 107 Ga. 828; Paulk v. Lee, 117 Ga. 6. Those cases are all different from the case now before us. In dealing with those cases this court passed upon the sufficiency of petitions addressed to the superior court, a court of general jurisdiction, and not with petitions addressed to the ordi^ nary, a court of limited jurisdiction. Moreover, the contests involved were not based upon the Civil Code (1910), § 125, and the provisions of law were different. As an illustration of the difference, in the case of Paulk v. Lee, which involved a contest on the local-option law, the petition to the superior court alleged in general terms'that a large number of illegal votes were cast, without giving the name of a single person. This allegation was clearly too general; and it was so ruled. In the case now before us the petition to. the ordinary gives the name of each and every person alleged to have voted illegally, and the petition also alleges that when all illegal votes have been excluded petitioner will be legally and duly elected and entitled to the office.
3. Plaintiff in error complains that the judge of the superior court erred in rendering a judgment for mandamus absolute, thus passing upon the merits of the case, because there was an answer filed “making an issue of fact.” The whole case, however, turns upon the order of the ordinary dismissing the petition for a contest on the ground that “it is, after consideration, adjudged that all legal requirements do not affirmatively appear in said petition as amended, and said petition as amended is hereby dismissed. It is so ordered.” This action of the court was the exact equivalent of sustaining a general demurrer to the petition. If this judgment of the ordinary was authorized by law, then. it necessarily follows that the judge of the superior court erred in rendering his judgment. On the other hand, if the judgment of the ordinary sustaining the general demurrer to the petition for a contest was unauthorized by law, then the judge of the superior court could do nothing except render a judgment absolute, requiring the ordinary to proceed to a hearing of the contest on its merits.