188 Ga. 437 | Ga. | 1939
The present writ of error presents the question whether the judge of the superior court was correct in dismissing on demurrer a petition for mandamus brought by C. L. West against T. E. Lewis, ordinary of Colquitt County, seeking to compel the defendant to hear and determine two certain contests filed by the plaintiff to an election of aldermen held in and for the City of Moultrie on October 3, 1938. The plaintiff and C. W. Cook were among the several candidates for the three places as aldermen to be filled in said election. At the close of the election the election managers announced the following result: Vernon Brabham, 362 votes; G. E. Huber, 332 votes; C. W. Cook, 324 votes; O. L. West, 318 votes; W. C. Arwood, 293 votes; and Sam Jenkins, 245 votes. In accordance with the returns thus made Vernon Brabham, G. E. Huber, and C. W. Cook were declared elected. The petition for mandamus was in two counts. In the first count it was alleged that on October 6, 1938, the plaintiff instituted contest proceedings before Lewis against C. W. Cook; and that at the hearing held on October 17, 1938, Cook appeared and filed a demurrer thereto, which was sustained by the ordinary, and the contest was dismissed. It was further alleged that it was the clear duty of Lewis as ordinary to hear the contest, that he had no discretion in the matter, and that his action in dismissing the contest was unauthorized and wrongful. In the second count it was alleged that after the first contest was dismissed, and on October 22, 1938, the plaintiff, after paying all costs of the first contest, instituted a second contest proceeding against Cook, and that at the hearing held on October 29, 1938, this contest was also dismissed by the ordinary on a demurrer filed by Cook; and further, that this action of the ordinary was likewise unauthorized and wrongful. In both counts it was prayed that a mandamus nisi issue, calling on Lewis to show cause why he should not be required to hear and determine said contests “by hearing evidence and inspecting the ballots contained
Should a mandamus issue to compel the ordinary .to hear the first contest filed by the plaintiff? Under the Code, § 34-3001, it is the duty of the ordinaries of the several counties of this State to hear and determine any contest that shall arise over an election of any municipal officer, “under the same rules and regulations as to the mode of procedure as prescribed in contests where commission is issued by the Governor.” In hearing and determining an election contest under the provisions of the above section, the ordinary does not act in a judicial or quasi judicial capacity. Shirley v. Gardner, 160 Ga. 338 (127 S. E. 855). In such cases the sole jurisdiction of the ordinary is “to determine . . whether the person filing the contest, or the one who was declared elected, received the greater number of legal votes, and, in case the contestant received it, to declare him duly elected.” Walton v. Booth, 151 Ga. 452 (107 S. E. 63); Simpson v. Rimes, 141 Ga. 822 (82 S. E. 291). While the decision and judgment of the ordinary upon the hearing as to which of the candidates received the greater number of legal votes is final and conclusive (Harris v. Glenn, 141 Ga. 687, 81 S. E. 1103; Robertson v. Easley, 20 Ga. App. 258, 92 S. E. 1027; Carter v. Janes, 96 Ga. 280, 23 S. E. 201; Johnson v. Jackson, 99 Ga. 389, 27 S. E. 734; Caldwell v. Barrett, 73 Ga. 604; Tupper v. Dart, 104 Ga. 179, 30 S. E. 624; Burgess v. Friar, 183 Ga. 386, 188 S. E. 526; Kinman v. Monk, 179 Ga. 132, 175 S. E. 458; Sibley v. Park, 175 Ga. 846, 166 S. E. 212), this is not true of a judgment of the ordinary dismissing a contest on demurrer and refusing to hear the same; and where the contest is based on grounds sufficient in law, mandamus will issue to compel the ordinary to hear such contest. Morgan v. Wason, 162 Ga. 360 (133 S. E. 921); Chapman v. Dobbs, 175 Ga. 724, 728 (166 S. E. 22). On the other hand, where the petition set out no valid ground of contest, the ordinary may sustain a motion to dismiss the petition. In such case, his judgment being correct, mandamus will not issue to compel him to hear the contest. Norwood v. Peeples, 158 Ga. 162 (122 S. E. 618). We find the following statement in the brief of counsel for the plaintiff: “For the sake of this argument, and in all fairness to the court, we abandon all the grounds of contest in the first contest, except ground one.” It is therefore proper, in