Griffin v. Trapp

• Decision Date: 11 April 1949
• Docket Number: 16587.
• Citation: 53 S.E.2d 92,205 Ga. 176
• Parties: GRIFFIN v. TRAPP.
• Court: Georgia Supreme Court

53 S.E.2d 92

205 Ga. 176

GRIFFIN v. TRAPP.

No. 16587.

Supreme Court of Georgia

April 11, 1949

Syllabus by the Court.

1. In a general State election for lawful constables where two constables are to be elected, and the names of three candidates appear on the ballots, and the official ballot contains the wording, 'Vote for two', an elector or voter may but is not required to vote for two candidates, but may vote for only one of the candidates, and erase, mark out or cancel the names of the other two candidates for whom he does not wish to vote, and the ballot should be counted in favor of the one for whom it was thus cast.

2. While the decision and judgment of the ordinary, after hearing and determining an election contest, such as is provided for under Code § 34-3001, is final and conclusive this is not true of a judgment of the ordinary dismissing a contest on motion and refusing to hear the same, where the contest is based on grounds sufficient in law, and mandamus will issue to compel the ordinary to hear such contest.

A. B Trapp filed in the Superior Court of Floyd County his petition for mandamus against Honorable Carl H. Griffin, as ordinary, in which he alleges: that on December 4, 1948, the regular time fixed by law for holding an election of constables throughout Georgia, he was one of three candidates for constable of the 1120th District G. M., Floyd County Georgia, the other two candidates being Idus Adams and

C. S. Garrett; that three named persons were managers of the election, and after the polls were duly closed, the managers proceeded to count the ballots; that a large number of ballots were cast in said election, containing petitioner's name only for constable; and that the managers of said election refused to count any ballots that were voted for petitioner, if said ballot did not have the name of one of the other candidates on said ballot. The petitioner alleges that, if the managers had counted, tallied, and given to him all of the ballots or votes cast that had his name only, he would have received more votes than Idus Adams. The petitioner further alleges that C. S. Garrett received enough votes to elect him, regardless of whether or not the ballots that had only the name of the petitioner thereon had been counted for him. He further alleges that on Monday morning, December 6, 1948, before the election returns had been consolidated and the results thereof declared, he filed with Honorable Carl H. Griffin, ordinary, a petition, contesting the apparent result of the election, a copy of which he has attached to the petition as exhibit 'A,' and the substance of which is as follows: 'Take notice that I, A. B. Trapp, hereby file notice that I do hereby contest the result of the election, and contest the election of constable of the 1120th District G. M., Floyd County, Georgia, held on the 4th day of December, 1948, on the ground that the managers of said election failed and refused to count all the ballots that were cast that had my name on the same. That numerous ballots were cast that had my name and my name only on same for bailiff or constable of said 1120th District, and that under the law any ballot that was cast for me, although the same did not contain the name of any other person or constable, should have been counted in my favor. Wherefore, I demand that the ballots containing my name on same shall be counted, and when so counted the result with show that I was duly and legally elected constable of the 1120th Dist. G. M. of Floyd County, Georgia.'

It is further alleged that a copy of the notice of contest was served on the other two candidates, and that the hearing of the contest was set by the ordinary for 10 o'clock a. m., December 20, 1948; that on December 20, 1948, the petitioner filed an amendment to his original petition for contest, which amendment was duly allowed and is as follows: 'Now comes A. B. Trapp, and amends his petition heretofore filed and says that he will take the evidence of Lee Pass and Mrs. Fred Camp and Mrs. Fred Coulter, and by such evidence will show that the managers failed and refused to count the ballots cast that had the name of petitioner and petitioner only on said ballot, and that said testimony of said named parties will show that petitioner received more legal votes than Idus Adams. Petitioner asks that said contest he heard December 20, 1948.'

It is further alleged: that on December 13, 1948, the petitioner served the other two candidates with a written notice that the contest would be heard by the ordinary at 10 o'clock a. m., December 20, 1948, at which time he, the contestant, would take the testimony of three named managers of the election; that subpoenas were duly served on the managers requiring them to be and appear at this hearing to give testimony; that they duly appeared and were prepared and ready to testify on the election contest; and that, when the contest was called, a written agreement was entered into between the three candidates and their counsel 'that not any ballots cast in the election in question that contained only the name of A. B. Trapp thereon were counted by the managers, and that there were ballots cast that contained only the name of A. B. Trapp.'

It is further alleged that, when the hearing of the contest was called by the ordinary on December 20, 1948, he entered the following order: 'Upon the motion of counsel for Idus Adams and C. S. Garrett, the petition for contest filed by A. B. Trapp is dismissed on the grounds that the managers of the election in controversy were not required and could not legally count any ballot that contained only the name of A. B. Trapp, when in fact there were three candidates running and only two to be elected, and it was printed on the ballot the words 'Vote for two." It is further alleged that if all of the ballots cast for the petitioner had been counted for him, he would have received more votes than were received by Idus Adams, and thereby he would have been and should have been declared duly elected; and that any and all ballots cast in said election which contained only the name of the petitioner were legal ballots and should have been counted in his favor.

It is further alleged: that all of the facts were made known to the ordinary at the time of and before the hearing at 10 o'clock a. m., on December 20, but that he nevertheless declined and refused to hear said contest and refused to hear the testimony of the managers of the election, and refused to have the box containing the ballots brought from the office of the clerk of the superior court into the ordinary's office and there opened and the ballots in said box duly and legally counted; that such action on the part of the ordinary was a dereliction of his duty and a failure and refusal on the part of said ordinary to discharge his official duty; and that he should be compelled to properly and legally discharge his duties with regard to the election contest in question.

The petition prayed: that the court issue a mandamus nisi directed to the ordinary, requiring him to show cause at a time and place designated by the court why a mandamus should not be issued against him, requiring him to bring the ballot box containing ballots cast in said election on December 4, 1948, for lawful constable of the 1120th District G. M., Floyd County, Georgia, from the office of the clerk of the superior court into the office of said ordinary, and there proceed to open the same and count all of the ballots cast in said election for lawful constable, and especially the votes or ballots that were cast for A. B. Trapp only for said office; that the mandamus be made absolute, and the ordinary be required to count said ballots as prayed; and for process.

On this petition an order was passed providing for service thereof on the defendant, and setting the hearing for January 4, 1949, and on that date the trial court entered the following order and judgment: 'The within case coming on for a hearing, and after hearing the evidence, and the agreed statement of facts, the within petition for mandamus nisi is made absolute, and Carl Griffin, Ordinary of Floyd County, Georgia, is ordered and directed to get the ballot box containing the ballots cast in the election in question from the office of the clerk of the superior court of said county, within ten days from this date, and proceed to count said ballots cast in said election for lawful constable of the 1120th District G. M. of Floyd County, Georgia; and said Carl Griffin, ordinary aforesaid, is ordered and directed to count all ballots that contained only one name for said office, of lawful constable and total said ballots to the credit of the candidate receiving same, although said ballot may have contained only the name of one candidate for lawful constable.'

This order states: 'The within case coming on for a hearing, and after hearing the evidence, and the agreed statement of facts, the within petition for mandamus nisi is made absolute.' The bill of exceptions recites: 'the said case was heard upon an agreed statement of facts * * * without the intervention of a jury, and without formal written answer by the ordinary, * * * by agreement.' The only agreed statement of facts appearing in the record is that entered into between the three candidates and their counsel, which has already been quoted.

To the judgment of the trial court the defendant excepted and assigns the same as error 'on the ground that it was contrary to law, and contrary to the evidence in said case and against the weight of the evidence and there was no evidence to support said judgment and order in that:' (a) In the constables' election out of which this controversy arose, it was specified on the official ballot that the...