Harris v. Sheffield

• Decision Date: 15 May 1907
• Citation: 57 S.E. 305,128 Ga. 299
• Parties: HARRIS et al. v. SHEFFIELD.
• Court: Georgia Supreme Court

57 S.E. 305

128 Ga. 299

HARRIS et al. v. SHEFFIELD.

Supreme Court of Georgia

May 15, 1907

Syllabus by the Court.

The writ of mandamus will not issue to compel a judge of the superior court to sign a bill of exceptions complaining of a ruling made in a case which was not within the jurisdiction of the superior court, when such want of jurisdiction appears from the application for the writ.

Performance of a political function by a court is not inherently judicial, and whatever jurisdiction over matters of a political nature with which courts may be constitutionally invested is derived from a statute.

Pol Code, § 1546, conferring on the superior court jurisdiction in cases of contest of a local option election, limits that jurisdiction to matters involved in the ascertainment of the true result of the election.

The unconstitutionality of the act under which the election is held, and the validity of the election as dependent on compliance with the prerequisites for calling the election are not comprehended within the scope of the contest provided for in this Code section.

The costs accruing in this court in an application for mandamus against a judicial officer are taxable against the applicant.

Application by T. B. Harris and others for writ of mandamus to H. C Sheffield, judge. Writ denied.

Byron Collins and Pope & Bennett, for plaintiffs.

Peeples & Jordan, for defendant.

EVANS J.

Under the act approved August 1, 1906 (Acts 1906, p. 114), to provide for local option elections in counties in which the sale of whisky is not lawful except through dispensaries, an election was held in the county of Early on September 4 1906. The result of the election was declared by the ordinary to be "against the dispensary." Pending the publication of the result, and within 20 days from the declaration of the result by the ordinary, certain citizens, representing themselves to be one-tenth in number of the voters who had voted at the election. filed a petition to contest the election and have the same declared invalid for 19 reasons, specifically set forth in the petition for contest. These reasons may be resolved into two general classifications: One, impeaching the validity of the election because of noncompliance with the prerequisites for calling the election; the other, because of the unconstitutionality of the act under which the election was held. This contest was presented to the judge of the superior court, who passed an order that a bearing be had thereon, but declined to appoint three justices of the peace to recount the ballots; and the contestants presented their bill of exceptions to the judge, assigning error upon such refusal, which bill of exceptions the judge refused to sign. In his order declining to sign and certify the bill of exceptions the judge says: "I recognize the truth of the statements therein contained, but refuse to certify the same officially, for the following reasons only, to wit: Because petitioners filed no exceptions pendente lite or otherwise in writing until now, and, instead of doing so, refiled their petition with the clerk of the court, and had the same served, and appeared and presented the same at the regular term of court to which the same was returnable; and I hold that said petitioners thereby waived the right to present this bill of exceptions, although petitioners' counsel, at the time of my refusal to grant the order requiring three justices of the peace to recount the ballots, and continuously since then, have expressed verbally their exceptions and intention to file a bill of exceptions." On the first day of the present term the contestants applied for the writ of mandamus to compel his honor, Judge Sheffield, to sign the bill of exceptions which had been tendered to him, and which was attached to the application. Judge Sheffield, in answer to the rule nisi, admitted the foregoing facts. In the case of Hendricks v. Reid, Judge, 125 Ga. 775, 54 S.E. 747, this court refused to make a mandamus absolute because the bill of exceptions tendered did not assign error upon any final judgment, and for that reason would have been dismissed by this court if the bill of exceptions had been signed. The principle upon which this case rests is that, while a writ of mandamus cannot be employed as a substitute for a writ of error, yet, when it appears that the rulings complained of cannot be reviewed by writ of error, this court will not commit the folly of requiring a judge to certify a bill of exceptions which must necessarily be dismissed. This ruling comprehends any case where the application for mandamus discloses that the proceeding before the judge was without the jurisdiction of the court. If the decision complained of is not within the jurisdiction of the court, it is coram non judice, and this court will not undertake to determine whether the court's decision was right or wrong, if he was without jurisdiction in the premises.

Therefore our inquiry will be directed to a construction of the act of August 1, 1906, with reference to the jurisdiction of the superior court in the matter of a contested election. This act is modeled after the local option act contained in Pol Code, § 1541 et seq. Indeed, many of the sections of the Code relating to the local option election for or against the sale of intoxicating liquors are by reference incorporated in the act of 1906. Among the sections so incorporated are 1543, 1545, and 1546, which relate to the manner of holding the election, the declaration of the result, and the proceeding for contesting the result of the election. The subject-matter of our present inquiry involves a construction of section 1546, in this: Does this section confine the jurisdiction of the superior court to matters affecting the result? or are its provisions sufficiently comprehensive to confer jurisdiction on the superior court to decide as to the validity of the election, when contested, because of noncompliance with the statutory prerequisites to calling the election, or because of the unconstitutionality of the act? Section 1546 provides that one-tenth of the number of voters having voted at such election may by petition to the superior court contest the election on any ground which "impeaches the fairness of the election or the conduct of the ordinary." When this petition is presented to the judge, he shall direct an order to three justices of the peace of the county, requiring them to recount the ballots on a given day and report the result to the term of the court to which the petition may be returnable. The section provides that "either party may subpoena witnesses to prove either fraud in the ballots, the counting thereof, or in the conduct of the ordinary, or of the managers of the election, and introduce evidence to establish either proposition or the converse thereof. *** If the election shall appear to have been fraudulently conducted, or the votes fraudulently counted, the judge shall have power to declare the result and overrule the action of the ordinary in the premises." In Ogburn v. Elmore, 121 Ga. 72, 48 S.E. 702, the query was propounded whether persons who have voted at an election can attack it on the ground that notice had not been published as required by...