Alexander v. Ryan

• Decision Date: 10 July 1947
• Docket Number: 15888.
• Citation: 43 S.E.2d 654,202 Ga. 578
• Parties: ALEXANDER v. RYAN.
• Court: Georgia Supreme Court

43 S.E.2d 654

202 Ga. 578

ALEXANDER v. RYAN.

No. 15888.

Supreme Court of Georgia

July 10, 1947

Rehearing Denied July 22, 1947.

B. D. Murphy, James A. Branch and Thomas B. Branch Jr., all of Atlanta, Gilbert E. Johnson, John J. Hennessy Dennis Pierce, Lawrence J. Dwyer and James W. Hennessy, all of Savannah, for plaintiff in error.

T Mayhew Cunningham, Ernest. J. Haar, W. Hugh Stephens, Aaron Kravitch, Phyllis Kravitch and Julian F. Corish, all of Savannah, Andrew A. Smith, of Atlanta, Thomas H. Gignilliat of Savannah, and Marvin O'Neil, Jr., of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

JENKINS Chief Justice.

1. Prior to the act of 1893, Code, § 34-3001 et seq., it might seem that the Governor was the proper official to determine issues raised in an election contest. Code 1873, § 1329 et seq. Under the law as it then existed, Judge Bleckley in speaking for the court in Hardin v. Colquitt, 63 Ga. 588, 592(2), observed: 'Taking all of these provisions together there is a very powerful indication of a purpose to concentrate all disputes touching the results of elections by the people, when the person elected is to be commissioned by the Governor, before him, and to make his commission final. * * *' Therefore under the old law, even in the absence of a contest, after the Governor had examined the returns of all elections of officers made to his department and determined on the face of the returns the person receiving the greatest number of votes and issued his commission on the basis of such determination, his decision in the matter could not ordinarily be inquired into in a subsequent proceeding, Corbitt v. McDaniel, 77 Ga. 544, 2 S.E. 692; Ginn v. Linn, 83 Ga. 180, 9 S.E. 784; but see, Low v. Towns, 8 Ga. 360(2), 367; Hardin v. Colquitt, 63 Ga. 588, 592(2). However, under present laws providing that in contested election cases the issues, when the person elected is to be commissioned by the Governor, shall be adjudicated by the judge of the superior court, it has been uniformly held that it is the duty of the Governor to issue the commission to the person whose election is certified by the proper authorities, in cases where there is no contest; and where there has been a contest to the person adjudged by the special tribunal to determine the result by contest proceedings as entitled to the commission, and in so doing his act is merely ministerial. While such a commission issued by the Governor is prima facie evidence of the right to office, it is not conclusive, and it is therefore competent for the judiciary to go behind the commission and to inquire into the right of the person so commissioned to exercise the functions of the office. Hathcock v. McGouirk, 119 Ga. 973, 47 S.E. 563; McCants v. Layfield, 149 Ga. 231, 232(3), 99 S.E. 877; Bennett v. Public Service Commission, 160 Ga. 189, 192, 127 S.E. 612; Stephenson v. Powell, 169 Ga. 406, 408(2), 150 S.E. 641; DeGraffenried v. Allen, 172 Ga. 249, 252, 157 S.E. 280.

(a) Under the above ruling the contention of the respondent Ryan to the effect that the commission issued to him by the Governor is final in the sense that it precludes the relator Alexander from instituting a proceeding in the nature of a quo warranto to prevent an alleged usurpation of office, is without merit.

(b) The contention of the relator Alexander that any question of the legality of the votes cast in the election cannot be determined in a quo warranto proceeding is under the particular circumstances of this case without merit, for while it is true that 'a quo warranto proceeding cannot be converted into an election contest,' Stephens v. Wohlwender, 197 Ga. 795, 30 S.E.2d 470, 471, and while Ryan, the respondent, not having received a majority on the face of the returns, could not have brought a quo warranto proceeding in order to show that a controlling number of ballots cast for his opponent were illegal (Hathcock v. McGouirk, 119 Ga. 973, 47 S.E. 563; Cutts v. Scandrett, 108 Ga. 620, 34 S.E. 186; this is a very different thing from precluding a respondent in a quo warranto proceeding instituted by a party claiming to have received a majority of the legal votes cast in an election, from defending his right to the office under prima facie title by virtue of a commission issued to him by the Governor by showing that the votes cast for his opponent claiming the majority were illegal. The reason an unsuccessful candidate cannot contest an election in a quo warranto proceeding is that the statute, Code, § 34-2801 et seq., provides the sole and exclusive method by which an unsuccessful candidate may go behind the election returns, and therefore the court in which the quo warranto proceeding is instituted has no jurisdiction of the subject-matter (Cutts v. Scandrett, 108 Ga. 620, 34 S.E. 186). But since the respondent in this case held prima facie title to the office under the commission issued to him by the Governor, he would not be required to seek to obtain by a contest that which he already has prima facie title to, and already is in possession of; and where, as here, the candidate having the majority of the votes as shown by the face of the returns institutes the quo warranto proceeding to contest the right of the respondent who holds the office under prima facie title; the court thereby acquires jurisdiction of the subject-matter (Hathcock v. McGouirk, 119 Ga. 973, 47 S.E. 563), and manifestly the respondent in such a proceeding is entitled to defend his right to the office under the commission by going behind the face of the returns and showing, if he can, that the votes cast for the relator were illegal.

2. The Code, § 34-1904, Ann.Supp. taken from Acts 1922, p. 100, 1943, p. 292, provides as follows: 'In all elections other than primary elections held under the auspices of a political party, it shall be the duty of the ordinary to provide and furnish at the expense of the county, * * * official ballots for all such elections, having printed thereon, in separate columns, the names of the candidates of each political party, designating the names of the political party to which they belong, and also the names of any other candidates for the office to be filled at said election * * * Provided, however, it shall not be the duty of said officers to place the names of any candidates on said official ballots, unless notice of their candidacy shall be given in the following manner, to wit: All candidates for national and State offices, or the proper authorities of the political party nominating them, shall file notice of their candidacy, giving their names and the offices for which they are candidates, with the Secretary of State, at least 30 days prior to the regular election * * *.' The Act approved Feb. 1, 1946, Acts 1946, p. 75, provides that the Secretary of State shall certify to the respective ordinaries the names of all candidates for national and State offices, who have qualified as such as provided in the above quoted code section, and further provides: 'The Ordinaries of the respective counties shall not be required to add any other names for national or state officers on the official ballot except upon certificate of the Secretary of State.'

(a) The manifest purpose of the above statute was to provide a definite procedure to govern the ordinaries of the 159 counties throughout the State in placing the names of the various party candidates upon the official ballot in an orderly and uniform manner. Construing the provisions of the statute as a whole in the light of the evils sought to be remedied, the statute was clearly intended to provide the sole and exclusive method by which a party candidate could have his name placed on the official ballots by the various ordinaries. While it is true that such intention may have been expressed in the negative by the use of such language as 'Ordinaries of the respective counties shall not be required to add any other names for national and state offices on the official ballot * * *.' Nevertheless the language is positive and unequivocal in asserting that the Secretary of State shall certify to the respective ordinaries the names of all candidates for national and state offices, and when taken together with the negative assertion that the ordinaries shall not be required to add any other names, the import is clear that no names are to be placed upon the official ballot except upon certificate of the Secretary of State. Any other construction would necessarily result in an uncontrolled and unpredictable exercise of individual discretion on the part of the numerous ordinaries, the natural consequence of which would be to do violence to the entire scheme and purpose of the legislation.

(b) It appears from the stipulated facts that after the Democratic primary had been held a vacancy occurred in the office of Solicitor-general of the Eastern Judicial Circuit, composed of the County of Chatham; and that upon the assemblage of the Democratic State Convention it nominated the relator Alexander as the Democratic candidate to fill the unexpired term of such office. It further appears that although the general election was to be held less than 30 days after the date of the contention, it sent a list of all of the Democratic nominees, including the name of the relator, Alexander, to the ordinaries of each of the 159 counties in Georgia with instructions in most positive terms that the names of all such nominees should be placed upon the official ballot as the nominees of the Democratic party. Under the statutory law as quoted, and in view of the stipulated facts of this case it was impossible for the relator Alexander to have complied with the law requiring that his name be filed as the party candidate with the Secretary of State...