Hardin v. Colquitt
| Citation | 63 Ga. 589 |
| Parties | Hardin. v. Colquitt, Governor, ex rel. |
| Decision Date | 30 September 1879 |
| Court | Supreme Court of Georgia |
Quo warranto. Elections. Justice of the Peace. Before Judge Speer. Rockdale county. At Chambers. May 28, 1879.
Reported in the opinion.
A. C. McCalla; A. A. Zachry, for plaintiff in error.
J. N. Glenn, for defendant.
A writ of quo warranto, in the name of the governor, on the information of Thomas D. Swann, against John F. Hardin, was heard and determined by Judge Speer, without a jury, the parties consenting to dispense with a jury. The controversy was respecting the office of justice of the peace in and for the 561st district, G. M., Rockdale county, and involved both the legality and the true result of an election held on the 4th of January, 1879, to fill a vacancy caused by the resignation of the late incumbent, D. O. White. The petition for the writ of quo warranto was filed on the 7th of February, 1879, and prayed that Hardin show cause why he held the governor's commission, and why the same should not be declared void, and be surrendered and canceled, and that a commission be ordered and issued to Swann, the relator, or that the election be declared null and void, and that such other and further order be had in the premises as might be proper.
The facts alleged in the petition were substantailly the following: The election was held after only ten days' notice had been given by the ordinary; the notice was posted in *one place only; the election was conducted and managed by three persons, one of whom (Posey) was the acting notary public of the district, but not a freeholder, and another (Adair) was the son-in-law of Hardin; the candidates were Hardin and the relator, and the declared result was sixty-four votes for the former and sixty-three for the latter, but nine of the persons who voted for Hardin (all of them named in the petition) were not qualified voters, because they had not paid the tax required of them by law for the year 1878, and three of the nine (naming them) were further disqualified by reason of non-residence, one of them residing in another district and two of them in Newton county; a fourth man of the same nine (naming him) had not been a resident of Rockdale county for six months immediately preceding the election, and a fifth one (naming him) had not been a resident of the district for the space of thirty days previous to the election; all these disqualifying facts were unknown to the relator until after the election; these nine illegal votes being deducted, would leave Hardin fifty-five, and the relator sixty-three, a majority of eight for the latter, making him the justice of the peace elect. On the sixth of January, two days after the election, the relator notified the governor of his intention to contest said election and the right of Hardin to a commission, and also served Hardin with notice of the contest and the grounds thereof, and of the time and place when and where the relator, as contestant, intended to take testimony, giving the names of witnesses to be examined; the day set was the sixteenth of January, and the county judge, who had been agreed upon to take the testimony, was engaged in his court and could not then act, in consequence of which the matter was postponed until the twenty-third of January, when both parties appeared, and the county judge proceeded to hear evidence and reduce it to writing; whilst this was in progress, it was ascertained that a commission had been inadvertently issued by thegovernor to Hardin, with a dedimus to the ordinary, and the ordinary, *on the 23d of January, administered to Hardin the oath of office and delivered to him the commission; the notice of contest was inadvertently overlooked in the executive department, and the commission was improperly issued, as the contest was still pending, and thirty days had not expired; the relator was thus deprived of his right of going before the governor with his contest; he, nevertheless, proceeded to lay the evidence as reduced to writing by the county judge, before the governor, and requested a hearing thereon, which was denied inasmuch as the commission had been issued and delivered. The petition averred that the election was illegally conducted, and that the result was a fraud upon the relator; that the election was held without legal notice of the time and place; that Adair was an incompetent manager because the son-in-law of Hardin, one of the candidates; that Posey was not a justice of the peace of the district or a freeholder as required by law; and that said nine illegal votes were counted for Hardin, thereby materially affecting the result. It also averred that the relator had no agency in selecting the managers, and that he was not aware of their incompetency until after the contest over the election was sprung.
The respondent answered, and at the trial his counsel moved to dismiss the writ, because the relator, "by his own pleadings, shows he is not entitled to said office, because said election was not held in conformity to the law by three freeholders of said district, after advertising the same for fifteen days or more." The court denied the motion, and this is assigned as error. Evidence having been introduced (which, however, is not authenticated so as to be considered on this writ of error), counsel for Hardin, in their argument on the merits of the case, urged the court to dismiss the proceeding "because the questions at issue were determined in a contest for the office before the governor, or were such questions as could and should have been determinedin said contest." Instead of so ruling, the court finally adjudged that the election was null and void because *Adair, one of the managers, was disqualified, he being the sonin-law of Hardin, that consequently Hardin was not legally elected, that his commission is void, that he do cease and abstain from any further exercise of the duties of the office, that these proceedings and the judgment thereon be certified to the gov-ernor, that the proper county officers give notice and provide for another election, and that the relator recover of the respondent his costs. The rendition of this judgment is also assigned as error.
1. The motion to dismiss should have been granted if the only question in the case had been upon the legality of the election, for the relator does not allege that he is a resident of the district, or show any interest in the controversy otherwise than as a claimant of the office. The Code lays it down, in section 3203, that the writ of quo warranto must be granted at the suit of some person either claiming the office or interested therein. The meaning of the language is, that it cannot be granted at the suit of any one else. Collins v. Huff, this term. So much of the petition as alleged the illegality of the whole election was demurrable, and had the same been demurred to separately, should have been stricken out. But by a...
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