Norwood v. Peeples

Hines, J. 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 [163] to bring into question the legality and fairness of the election. Collins v. Huff, 63 Ga. 207; Jossey v. Speer, 107 Ga. 828 (33 S. E. 718); Paulk v. Lee, 117 Ga. 6 (43 S. E. 368). No. 4223. April 21, 1924. 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. All the Justices concur, esccept Gilbert, J., dissenting. W. B. Smith and John P. & Dewey Knight, for plaintiff in error. B. A. Hendricks, Jeff S. Story, and Elsie Higgs Griner, contra.