Brockett v. Maxwell

• Decision Date: 09 January 1946
• Docket Number: No. 15305.,15305.
• Parties: BROCKETT. v. MAXWELL, Ordinary.
• Court: Georgia Supreme Court

36 S.E.2d 638

BROCKETT.

v.MAXWELL, Ordinary.

No. 15305.

Supreme Court of Georgia.

Jan. 9, 1946.

Error from Superior Court, Decatur County; Carl E. Crow, Judge.

Certiorari proceeding by C. B. Brockett against Nell Maxwell, Ordinary, to review a decision by the Ordinary overruling petitioner's objections to an election held for the purpose of nullifying a previous election under the Revenue Tax Act to legalize and control alcoholic beverages and liquors and declaring the result of such election. To review a judgment denying his petition for certiorari, petitioner brings error.

Transferred to the Court of Appeals.

See also 35 S.E.2d 906.

C. B. Brockett presented to the judge of the superior court of Decatur County a petition for the writ of certiorari, seeking to review a decision by the ordinary of that county, which petition was denied. The petition alleged: The ordinary of Decatur County on May 29, 1945, called an election for the purpose of nullifying a previous one, which had been held on June 25, 1938, under the provisions of the act known as "The revenue tax act to legalize and control alcoholic beverages and liquors." After the said election was held on June 15, 1945, the petitioner filed objections with the ordinary to a declaration of the result, which objections were heard and overruled on June 18, 1945; and the result of the election was declared in favor of nullifying the previous election. To the petition for certiorari was attached a copy of the objections, making the following allegations: The objector was a resident, citizen, and taxpayer of Bainbridge, Decatur County, Georgia, and was legally engaged in the business of a retail liquor dealer, having on hand a large stock and committed, under a contract, to buy more. He had a substantial property right involved in the result of the said election. He was paying to the City of Bainbridge and the County of Decatur an annual license fee for the privilege of carrying on his business. Some time prior to May 1, 1944, a number of registeredvoters handed to the ordinary of Decatur County a number of petitions, based on which she called an election, under the provisions of the act of 1941, Ga.L.1941, p. 199, to be held on a stated date, but because of an error in the advertisement the election was not held. Subsequently, certain citizens, desiring to bring on such election to nullify the previous election, obtained from the ordinary the petitions which had been previously lodged with her, circulated them together with other petitions, and after securing additional signers presented them again to the ordinary prior to May 29, 1945. In all, thirty-nine different petitions were presented to her, together with two sheets of paper, one with forty-three names thereon, and the other with fifty-four. The thirty-nine petitions, reciting that they had been signed by thirty-five percent of the registered voters of the county, requested that she call the election. Following the presentation of the petitions, and based thereon, and under the provisions of the act of 1941, supra, the election was called on May 29, 1945, to be held on June 15, 1945. The election called is illegal; and, if the result is declared, it will result in great damage to the objector, a multiplicity of suits, and will jeopardize the liberty of those who may subsequently seek to contest its legality. It was illegal to permit the withdrawal of the old petitions for recirculation and presentation again. The registration list for the general election immediately preceding the call of the election for June 15, 1945, showed a total registration of 4293 voters. Thirty-five per cent of this number would be legally necessary as a basis for a call of an election. On the petitions presented were 348 names of persons not qualified to vote, 202 persons who signed one or more of the petitions two or more times, and 7 who were dead at the time the petition was presented. There were 1738 signatures on the several petitions and lists; but, when the names of those disqualified, the duplications in signing, and those deceased are deducted, the petitions do not contain the requisite thirty-five per cent, or 1503, as the required number of signers. These facts have been brought to the attention of the ordinary to induce her to call off the election, but she declines to do so. It would be necessary for all of the petitioners to join in one petition instead of signing several. Only two of the petitions have been marked "filed" by the ordinary. In numerous instances it appeared that one person signed the petition for others. Frequently the...