Ogburn v. Elmore

Cobb, J. The general local option liquor law provides that within twenty days from the day on which the ordinary declares the result of the election, one tenth of those who voted at the election may institute contest proceedings in the superior court in the manner provided in the act; that upon the institution of such a contest the' judge shall direct three justices of the peace of the county to recount the ballots on a given day and report the result to the next term of the superior court, or to the term to which the petition is made returnable, at which term the eon681 test must be heard, if such term is held, and if not, then at the next regular term of the court; that a continuance or postponement of the contest shall not be had for any other reason than the failure to hold the term to which the contest is returnable; and it is provided that if any of the parties die, it shall not be necessary to make the legal representatives of the deceased parties to the case. Provision is made for the summoning of witnesses and the hearing of evidence. The finding of the superior court on the contest is referred to as “ the judgment of the superior court,” and is declared to be final unless the case is carried to the Supreme Court for review. Political Code, § 1546. Express authority is thus conferred upon the superior court as a court to hear the contest. The authority is not conferred upon the judge, but upon the court; and the act expressly declares that the action of the superior court, denominated as the judgment, may be reviewed by the Supreme Court. What is the status of such a proceeding when instituted in the superior court ? The superior court is a constitutional court, and jurisdiction is vested therein by the constitution for the hearing and determining of civil and criminal cases. It has original jurisdiction in regard to certain classes of civil cases and appellate jurisdiction in regard to other classes. It has exclusive jurisdiction of certain classes of civil eases, as well as of certain criminal eases, and it has concurrent jurisdiction with other courts of civil and criminal cases of given classes. The superior court as created by the constitution is a court for the determination of civil and criminal cases. The manner in which these cases shall be heard and determined, so far as it is not prescribed in the constitution, is left to the determination of the General Assembly. The constitution confers upon the superior court and upon the judge authority to exercise, in certain instances, powers which would ordinarily be exercised by the executive or legislative department of the State, as where the judge is authorized to appoint a notary public who is,ex-officio a justice of the peace, or where the superior court is authorized to grant charters to corporations of a given character. There is nothing in the constitution which confers upon the superior court as such the right to hear and determine contests of elections. The question whether there is in the constitution anything which would prohibit the superior court as a court from entertaining jurisdiction of such con [682] tests is not made by the present record and need not be inquired into. Whatever doubts may have heretofore existed as to the power' of the General Assembly to confer upon persons holding judicial offices the authority to hear contests of elections, it seems to be now settled that this power can be conferred upon these individuals, notwithstanding their relation to the judicial department of the government. See Johnson v. Jackson, 99 Ga. 389; Skrine v. Jackson, 73 Ga. 382. See also, in this connection, Mayor v. Perry, 114 Ga. 881. And when such authority is conferred upon a person holding a judicial position, and there is no provision of law for a review of his decision, it is final. Carter v. James, 96 Ga. 280. Whether in a case where a matter of this character is referred to the decision of the superior court the right of the Supreme Court to review its decision would arise under the constitution, in the absence of an express provision in the act, need not be decided, for the reason that the act under consideration in express terms provides for such review, and no question was raised as to the validity of this provision. There may be grave doubts as to the expediency of conferring upon persons holding judicial'office, and upon the courts as such, the right to determine those questions which are of a political nature, and which could with more propriety be determined by the political department of the government. But if the General Assembly has the authority to confer this power upon such officers, or upon the courts, the question of expediency is addressed to their sound discretion and judgment. Treating the act as authorizing the superior court as such to hear the contest, and that provision authorizing a review by the Supreme Court as being a valid exercise of power by the General Assembly, the question which now confronts us is, does this legislation make the proceeding in the superior court partake of the nature of the ordinary case instituted in that court under its1 well-defined and undoubted constitutional jurisdiction? Civil cases of which the superior courts have original jurisdiction are either cases at law or cases in equity, that is, cases in which the court is called upon to render a judgment according to the principles of the common law, or to enter a decree according to the established principles of the court of chancery. It is impossible to classify the proceeding to contest the election either as a case at law or as a case in equity. The proceeding is one in its nature [683] and effect unknown to the jurisdietion.'of either a common-law or equity court. It is a proceeding peculiar ip its nature, of which the superior court would have no jurisdiction in the absence of a. statute expressly conferring it. It stands alone and isolated, and. in the determination of the questions therein raised the court is. called upon to exercise neither its common-law nor its chancery-powers, but to exercise simply the power conferred by the statute-within the narrow limits therein prescribed. Such being the case,, it must be instituted in the manner thus prescribed, and must not. be joined or united with any other matter of controversy, even between the same parties, of which the superior court may have jurisdiction either as a court of law or as a court of equity. It can not be annexed to a law case, nor can it be made a part of an. equity case. Equitable relief can not be sought in the proceed-, ing; and legal relief can only be sought to the extent that the statute authorizes it, and no further. It now becomes necessary for us to determine what was the-character of the proceeding which was instituted by the plaintiffs, in the present case. Was it an appeal to the superior court as a court of equity, for the exercise by that court of some of its equity powers ? Or was it a contest instituted under the provisions of' the general local option liquor law (Civil Code, § 1546) ? The-petition has in it some allegations which would be appropriate, to a petition for a contest; but in the prayer for a recount the plaintiffs do not ask for that which the law says shall be required in a contest, that is, for a recount of the entire vote cast in the. election, the prayer being simply for a recount of the vote cast, at three precincts. It is addressed to the superior court. This would be appropriate in a petition for contest as well as in a, petition for equitable relief. The allegations in reference to the. conduct' of the ordinary, so far as- the notice of the election and the consolidation of the returns are concerned, would- be appro-, priate in either proceeding. The statement as to the ratio which the number of the plaintiffs bore to the number of voters at the. election would indicate that it was the intention of the plaintiffs, to contest the election. That the petitioners are citizens and taxpayers and that some of them are interested as sellers of liquor, and therefore interested as such in the action of the ordinary, are averments wholly foreign- to a contest but are appro-, priate to a petition for equitable relief. This is also true in.ref-.. [684] erence to those allegations as to the injunction and the prayer for the granting of the same. The petition prays for process, which is a prayer wholly unnecessary and improper in a petition for a contest. The ordinary in his acknowledgment of service seems to have treated the petition as of a dual nature, but the construction placed by him upon the petition is of course immaterial. The petition was presented to the judge as a petition for equitable relief, and was sanctioned as such. A hearing was had that would be had upon such a petition, and the case was brought to this court and heard upon a fast writ of error in the same manner that an ordinary injunction case would be disposed of. Considering the petition as a whole, as well as the manner in which the same has been dealt with by counsel and by the judge of the superior court, no other conclusion-can properly be reached than that.it was intended, when filed, as a petition for equitable relief. So construing it, those allegations which would be appropriate only to a petition for a contest were merely surplusage, and, even if not stricken, could be ignored. The judge therefore properly refused to allow the amendment which sought to convert the petition into a proceeding for contest by making allegations in reference to a recount of the ballots which were not made in the original petition. But we think the judge erred in refusing to allow the amendment striking out those portions of the petition relating to the prayer for injunction. In all cases, both at law and in equity, the plaintiff has a right, which is not subject to any limitation, to strike out any averment that he sees proper, and the court must allow the amendment. If this amendment had been allowed, however, the petition would have been left with nothing in it with which the superior court as a court of equity could deal, and therefore could have been stricken from the files either on motion of counsel or by the court on its own motion. The amendment should have been allowed, and then the case dismissed for want of equity in the petition. There was no equity in the petition as originally filed. Ogburn v. Elmore, supra. There would certainly have been no equity in the petition if the amendment had been allowed; and the erroneous dis-allowance of the amendment will not work a reversal of the judgment. Judgment affirmed. All the Justices concur, except Simmons, €'. J., absent.