Lucken v. Falligant

Bowles, Justice. Appellants, as residents and registered voters of the township of Vernonburg, a municipality in Chatham County, Georgia, filed a petition for a writ of mandamus against J. Daniel Falligant, Superintendent for Elections [817] for the city, Joseph D. Purvis, Intendant (Mayor) and Thomas H. Adams, Archie H. Davis, James E. Hungerpiller, and Harrell C. Murray, Jr., as Town Commissioners, making up the governing council of the municipality. The complaint alleges that a regular election for the municipality was held on May 3,1978, for the positions of Intendant and Commissioners. The names appearing on the ballots for the election were the named defendants, except the Election Superintendent. A majority of the voters in said election cast ballots for persons in opposition to the slate of commissioners by writing in their names and by striking the printed names on the ballots. Upon the count being completed Falligant, as Superintendent, refused to certify the write-in parties as winners, refused to recognize the results, and has refused to administer the oath of office to the write-in parties, thus preventing them from assuming the official duties of the offices to which they claim they are elected. Appellants claim that such action deprives them of their right to vote in violation of both the United States and Georgia Constitutions. They prayed for certification, and swearing in of the write-in candidates and for mandamus absolute. The matter came on for hearing before the trial court, and the parties have stipulated the material facts which are not in dispute to the effect that the plaintiffs are residents and registered voters of the municipality; on May 3, 1978 there was a regularly scheduled election for the positions of Intendant and Commissioners; the qualified candidates for all positions were on the ballot unopposed; a majority of the voters who cast ballots struck the names of the qualified candidates on the ballot and wrote in the names of persons not on the ballot; no notice of publication of candidacy of any of the write-ins was given. The trial judge denied the relief sought and sustained the defendants’ motion to dismiss on several grounds. We affirm. (1) Appellants admit that no notice of these proceedings was served on the State Election Board as provided in the Municipal Election Code § 34A-110 and the law in regard to all elections Code Ann. § 34-203 (a) [818] (d). A petition seeking mandamus requiring the defendants to administer the oath of office to persons who claim to have been elected as write-in candidates in a municipal election is such a proceeding that requires notice to the State Election Board. The omission of the required notice constitutes a fatal defect. Compare O’Keefe v. Braddock, 237 Ga. 838 (229 SE2d 758) (1976). The trial court did not err in dismissing plaintiffs’ complaint for this reason. Submitted April 6, 1979 Decided June 20, 1979. Robert Paul Phillips, III, Clark Smith, for appellants. James B. Blackburn, for appellees. Judgment affirmed. All the Justices concur, except Hill, J., who concurs specially.