McNair v. Achord, 20652

• Decision Date: 04 November 1959
• Docket Number: No. 20652,20652
• Citation: 215 Ga. 540,111 S.E.2d 236
• Parties: Eugene McNAIR v. Daniel N. ACHORD et al.
• Court: Georgia Supreme Court

Page 236

111 S.E.2d 236

215 Ga. 540

Eugene McNAIR v. Daniel N. ACHORD et al.

No. 20652.

Supreme Court of Georgia.

Nov. 4, 1959.

Syllabus by the Court

The constitutional amendment, duly ratified by the people, creating the election of the six members of the Board of Education of Wheeler County by militia districts therein, having provided by law for the time of said regular election, the notice of said election to be given by the ordinary is merely directory, and his failure to perform this duty does not invalidate the election thus held on that date.

This is an equitable action to enjoin a county election to be held on the date set out in an amendment to the Georgia Constitution, art. 8, § 5, par. 1 (Code, Ann. § 2-6801; Ga.L.1955, pp. 711, 714), duly ratified in the general election of 1956, authorizing the election by militia districts of the six members of the Wheeler County Board of Education. The law as ratified required the ordinary of the county to publish the notice of the first election once a week for two weeks immediately preceding the date of the election on the first Tuesday in February 1957, and the successors to such elected members, who were to be elected in the first election to staggered terms from one to six years, are to be elected at elections to be held on the first Tuesday in February in the year in which the members' terms expire.

The petitioner is alleged to be a citizen, taxpayer, and voter, interested in the enforcement of the laws and legal administration of the county, and a member of the Wheeler County Board of Education. He brought the action based on the fact that the ordinary failed to give the proper notice of an alleged election to be held on February 3, 1959 (first Tuesday) for the office which the petitioner holds, expiring on December 31, 1959, and is planning and threatening to hold such purported election without any notice whatsoever to the petitioner or the public, in utmost secrecy. He further alleges in his petition that, several days prior to the election, he learned of the secret election, sought to become a candidate to succeed himself, but was advised by the ordinary that he had failed to qualify--the entries of candidates having closed 15 days before, another candidate had qualified, and he would not accept petitioner as a candidate to succeed himself; that neither the petitioner, voters or citizens of said county have an adequate remedy at law to prevent the wrongs and illegal acts of the ordinary in holding the purported election; and that equity should intervene by enjoining the illegal and void election until the ordinary has issued a proper order calling said election and providing for the qualification of candidates together with the proper notice, etc., in strict compliance with the law pertaining to the holding of such an election. A temporary restraining order was granted--which was not obeyed and the election was held on the date set by law, and the petitioner amended his petition setting out the violation and utter disregard of the restraining order, and prayed that the purported election be adjudicated illegal, null, void, and of no legal force and effect. Demurrers, a motion to strike the last amendment, and renewed demurrers to the amended petition were duly filed by the defendants, and, after a hearing, the motion to strike the last amendement and the renewed general demurrer were sustained, and the petition was dismissed. The exceptions are to these judgments.

Carl K. Nelson, Nelson &...