Holtzendorf v. Glynn County

• Decision Date: 17 February 1949
• Docket Number: No. 32254.,32254.
• Citation: 52 S.E.2d 671
• Parties: HOLTZENDORF et al. v. GLYNN COUNTY et al.
• Court: Georgia Court of Appeals

52 S.E.2d 671

HOLTZENDORF et al.

v.GLYNN COUNTY et al.

No. 32254.

Court of Appeals of Georgia,

Division No. 2.

Feb. 17, 1949

.

Rehearing Denied March 31, 1949.

Syllabus by the Court.

Where a statute provides a special form of remedy for a specific type of case that statutory remedy must be followed, and remedies of that description do not come within the provisions of the declaratory judgment law.

Error from Superior Court, Glynn County; Gordon Knox, Judge.

Suit by R. R. Holtzendorf and others, against Glynn County, and others, for declaratory judgment. From judgment dismissing petition plaintiff appealed to the Supreme Court, which ordered the case transferred to the Court of Appeals.

Affirmed.

On August 13, 1948, the plaintiffs, R. R. Holtzendorf, C. Arthur Nail, John Harrison, and Alfred Noble, filed their joint petition in the Superior Court of Glynn County, seeking a declaratory judgment to invalidate a "no-fence" election, held on July 7, 1948, as illegal, void, and of no effect at the time of the filing of the petition and further to declare that the result of the election, establishing a "no-fence" law, would not, as provided by the terms of the no fence law, become effective at the expiration of six months from the time of the election. The defendants named in the petition are Glynn County, a political subdivision of the State, Edwin W. Dart, Ordinary of Glynn County, the Brunswick Junior Chamber of Commerce, an unin-corporated association of members in Glynn County, with James Gilbert as president. Briefly summarized, the plaintiffs' petition alleged that the Brunswick Junior Chamber of Commerce sponsored the calling of the election and secured and filed the necessary petitions for calling the election; Edwin W. Dart is Ordinary of Glynn County, and is charged with calling and holding the election under the law and certifying the results, but that during the Ordinary's absence, the Honorable W. C. Little, Judge of the City Court of Brunswick, acted in the Ordinary's behalf, which action is alleged to be illegal and contrary to law; the election was illegal in that the ballot was confusing to the voters by requiring that the voter place an "X" or check mark after his choice as between fence and no fence, instead of requiring, as is customary that the voter strike out that for which he does not wish to vote, and that this caused a sufficient number of voters to have changed the outcome of the election; to vote against their wishes. The petition also alleged that the election was illegal by reason of the Ordinary's failure to observe the provisions of the Australian Ballot Law, Code, § 34-1901 et seq. The plaintiffs alleged that they, as well as a great many other citizens of Glynn County own stock and do not find it feasible to attempt to comply with the No-fence law and that it would result in a great many of the citizens of the county disposing of their stock and going out of business at a serious sacrifice and that the law will result in instances of damage and loss of property and many legal conflicts due to the apparent invalidity of the election.

The defendants filed their separate general and special demurrers, and the court sustained the general demurrer of each of the defendants and dismissed the petition as to each of them. The plaintiffs excepted to this judgment and appealed the case to the Supreme Court which Court ordered the case transferred to the Court of Appeals for adjudication.

G. B. Cowart, of Darien, for plaintiffs in error.

Gowen, Conyers & Dickey and Jack J. Lissner, Jr., all of Brunswick, for defendants in error.

MacINTYRE, Presiding Judge.

Prior to the enactment of the declaratory judgment law, Code Anno. Supp, § 110-1101 et seq. Acts 1945, pp. 137-139, it was well established that an election under the stock law, Code, § 62-501, upon the question of fence or no fence, and the ordinary's supervision of the election are in the exercise of political and police powers incident to legislative and executive government, and are not, in their general political and police effect, at all judicial. The courts have no jurisdiction to interfere except as conferred by the act itself, Scoville v. Calhoun, 76 Ga. 263; Ogburn v. Elmore, 121 Ga. 72, 48 S.E. 702; Heath v. Bellamy, 15 Ga.App. 89, 82 S.E. 665; and this was true whether at law, Heath v. Bellamy, suprai Reeves v. Gay, 92 Ga. 309, 18 S.E. 61, or in equity, Clark v. Board of Education of Laurens County, 162 Ga. 439, 134 S.E. 74; Skrine v. Jackson, 73 Ga. 377; Caldwell v. Barrett, 73 Ga. 604; Board of Education of Burke County v. Hudson, 164 Ga. 401, 138 S.E. 792; Church v. Purcell, 186 Ga. 95, 96, 196 S.E. 806; Davis v. Haddock, 191 Ga. 639, 13 S.E.2d 657; Plainfield Consolidated School District v. Cook, 173 Ga. 447, 160 S.E. 617; Tharpe v. Hardison, 69 Ga. 280, 283; Freeman v. State ex rel. McDonald, 72 Ga. 812; Irvin v. Gregory, 86 Ga. 605, 611, 13 S.E. 120; Chamlee v. Davis, 115 Ga. 266, 267, 41 S.E. 691; Nelms v. Pinson, 92...