Skrine v. Jackson

| Ga. | Sep 16, 1884

Blandford, Justice.

Certain freeholders, citizens of Richmond county, petitioned the ordinary of that county for an election to be held by the voters of the county for fence or no fence. The ordinary issued an order for an election, which was held on the eighth day of January, 1884; on the ninth day, the votes at said election were consolidated by the managers and turned over to the ordinary; on the tenth day of the same month, the ordinary declared that “ no fence ” -had received a large majority of the votes cast at said election.

- In March thereafter, the plaintiffs in error filed this bill, in which they prayed an injunction against the defendants, for certain reasons assigned in the bill. The judge of the superior court refused the injunction, and this decree is assigned as error here.

Under the act of 1872, page 34, Code, §1449, the ordinary is required to order an election under certain circumstances, and the returns of the election are to be made to the ordinary, who is required to examine the same, and to decide upon all questions which may arise out of said election, and he shall proclaim the result. There is no provision made by the act for any review of this action by the ordinary. The legislature seems to have contemplated that this action by the ordinary should be final and conclusive. No court in this state has any power, by injunction or otherwise, to interfere therewith. The legislature has seen proper to confer this power on the ordinary; it is part of the political power of the state, and without some authority vested in the judicial department of the government by law, the judiciary cannot intervene. It would be an assumption of power on their part, unauthorized by law, by any of its processes, to' interfere in any manner with the full exercise of power granted by the act to the ordinary; and we know of no precedent Avhich will authorize the courts to interfere in the way and manner asked for by this bill. Tharpe vs. Hardison, 69 Ga. 283.

There are but two modes by which the legality of an election may be inquired into — by the common lav and by statute. By the common law, an information in the nature of a writ of quo warranto was exhibited by the state, upon the relation of some person claiming the office said to be usurped by the defendant, and he was required to show by what authority he held the office. The legality of his election might be inquired into by this proceeding, but by our Code the relator must claim the office himself or be interested therein. Code, §3203. The state and the person who exercises the office are parties to this case. It ir quite clear that such a proceeding is not applicable to the present case. There is no office, and there is no person claiming an office, and no person exercising an office, but simply a law is declared adopted, which provides for the future that no fence need be used by the citizens of Richmond county. Is there any statute of force in this state, other than has already been referred to, which authorizes the courts to inquire into the legality of this election ? None has been pointed out to us, and we have failed to find any. Then, if the remedies provided by the common law fail, and no statutory remedy bo provided, is not the presumption conclusive that the legislature did not intend to have judicial interference in this matter, but to leave it to the determination of (he ordinary, as provided in the act? See McCrary on Elections, pages 221, 222, 223; Suffrages and Elections by Naar, 230. In the case of Freeman et al. vs. McDonald et al., 72 Ga., 812" court="Ga." date_filed="1884-03-04" href="https://app.midpage.ai/document/freeman-v-state-ex-rel-mcdonald-5561290?utm_source=webapp" opinion_id="5561290">72 Ga., 812, this same principle was asserted, which is, that the legislature could provide a tribunal for the determination of contested, elections, and that such determination was final and conclusive; and as the legislature has provided in the act under which this election was held how the same was to be determined, and no remedy existing at common law, or other provision by statute by which the courts can inquire into the legality of this election, then the decision of the ordinary is final and conclusive.

But even if we were wrong in the view presented, yet we are entirely clear that, under the allegations in this bill and the facts of this case, the chancellor was right in refusing the injunction. The bill came'too late, after the ordinary had acted and proclaimed the result, to have authorized the injunction to issue. If there was any remedy at all, it should have been sought before the ordinary had acted and the result had been proclaimed. All things must have an ending; there must be some finality; and we think that this matter had an end and final termination when the ordinary decided and proclaimed the result of the election. Dyson, ordinary, vs. Pope, 71 Ga , 205; Freeman et al. vs. McDonald, 72 Ga., 812.

So the judgment of the court below must be affirmed.

Judgment affirmed.