Ogburn v. Elmore

• Decision Date: 03 August 1905
• Parties: OGBURN et al. v. ELMORE, Ordinary.
• Court: Georgia Supreme Court

123 Ga. 677

51 S.E. 641

OGBURN et al.

v.ELMORE, Ordinary.

Supreme Court of Georgia.

Aug. 3, 1905.

1. Intoxicating Liquors — Local Option Law—Contest—Jurisdiction.

The general local option liquor law (Pol. Code 1895, § 1546) confers upon the superior court as a court jurisdiction to hear and determine a contest of an election held under the provisions of that law. The question whether the General Assembly could constitutionally confer such authority upon the superior court is not made in the present case, though it is settled that such authority may be conferred upon individuals holding judicial office.

2. Same—Special Proceeding.

The proceeding for contest under the general local option liquor law is not an action at law or a suit in equity. It is a special statutory proceeding conferring power which must be exercised within the limits and by the method prescribed by the statute.

3. Same.

Such a proceeding cannot be annexed to a suit at law or a case in equity; nor can a suit in equity be converted by amendment into a proceeding for contest under the statute.

4. Same—Petition—Equitable Relief.

The petition in the present case, properly construed, sets forth a suit in equity, and not a proceeding to contest an election held under the provisions of the general local option liquor law.

5. Same—Amendment.

It has heretofore been determined that there was no equity in the original petition. While the amendment by which certain allegations in that petition were sought to be stricken ought to have been allowed, as there would have been no equity in the petition with these allegations stricken, a judgment refusing the amendment and dismissing the petition will not be reversed.

(Syllabus by the Court.)

Error from Superior Court, Macon County; Z. A. Littlejohn, Judge.

Action by Ogburn and others against Elmore, ordinary of Macon county. Judgment for defendant, and plaintiffs bring error. Affirmed.

Ogburn and 293 others, in a petition addressed to the superior court of Macon county, made the following allegations: On July 9, 1904, a petition was filed with the ordinary of that county for the purpose of bringing on an election to determine whether such spirituous liquors as are mentioned in Pol. Code, § 1548, should be sold within the limits of Macon county. Elmore, the ordinary, upon the filing of the petition passed an order submitting the question to the qualified voters of the county, as required by law, and further ordered that notice of the election should be published in a named public gazette the requisite number of days. Although the order was passed on July 9th, the notice was not published until July 15th, and appeared only in the issues of a gazette dated July 15th, 22d, and 29th, and only 15 days elapsed from the first to the last insertion; the first notice being published only 24 days before the time fixed for the election. On the day named in the order the polls were opened at the different precincts in the county, and a pretended election was held. On August 9th—the day following the pretended election—the managers at the different precincts returned to the ordinary all the papers required to be returned at a lawful election, and the ordinary made an attempt to consolidate the returns, and, after such consolidation, did declare that a majority of the votes had been cast against the sale, and on the same day did publish for the first time the result of the election as declared by him, and is proceeding to publish the same once a week for four weeks. Unless the ordinary is enjoined from perfecting the result of said illegal election, the effect of the publication will be to make illegal the sale of liquors, at least until the order is reversed or set aside. Petitioners are citizens and taxpayers and interested in the revenue arising from the sale of liquors, and six of them (named) are engaged in the sale of spirituous liquors, and will be deprived by the illegal order of their property, being compelled to close their places of business. Petitioners are without a remedy except In a court of equity and by the state's writ of injunction. The result as declaredby the ordinary is not the true result of the election. A majority of the votes cast at the election was for the sale. At one of the precincts there were 39 votes for the sale and 12 against the sale, and the ordinary willfully and fraudulently rejected this precinct from the consolidation. At another presinct there were 197 votes for the sale and 203 votes against the sale. Notwithstanding the election at this precinct was not held at the proper place, the ordinary, in the consolidation, counted these votes. A large number of registered voters, to wit, 467, were deprived of their right to cast a legal ballot at this precinct on account of the failure to establish and open a legal voting place in the district. At another precinct 51 votes were cast for the sale and 66 votes against the sale. These votes were counted in the consolidation, notwithstanding one of the managers at the precinct was neither a freeholder nor officer authorized by law to hold an election. This was also true of one of the managers at the second precinct above referred to. The petitioners constitute more than one-tenth in number of those who voted at the election, and the petition is filed within 20 days from the day the ordinary declared the result. The prayer was that the judge direct three justices of the peace to recount the ballots at the three precincts above referred to, and report the result of the recount at the next term of the superior court to which the petition was made returnable; that the writ of injunction be directed to the ordinary enjoining and restraining him from any further publication of the result of the election, and from in any manner attempting to enforce or carry into effect any order made by him in reference to declaring the result of the election; and that process issue requiring the ordinary to be and appear at the next term of the superior court to be held for the county to answer the complaint. The petition was verified by the oath of one of the petitioners. Upon being presented to the judge, the same was sanctioned, and ordered filed, and a rule nisi was issued requiring the ordinary to show cause on a named day why the injunction prayed for should not be granted. It was further ordered that three named justices of the peace recount the votes at the three precincts referred to in the petition. Attached to the petition as an exhibit was a copy of the notice of the ordinary of the result of the election as declared by him, from which it appeared that upon a consolidation there were cast 547 votes for the sale and 570 against the sale, and the result of the election was declared as being against the sale. Process was duly issued, and the ordinary acknowledged service of the petition in the usual form of acknowledgments of service upon petitions in equity, following this acknowledgment with the statement that he also acknowledged service "of the filing of said petition for contest" and the order of the judge requiring a recount of the votes at the three precincts, waiving "all further notice of the filing [of] said petition for contest." At the time fixed for a hearing of the injunction the defendant appeared and filed a demurrer and an answer; and, after hearing evidence and considering the pleadings, the court refused to grant the injunction prayed for. This judgment was affirmed by the Supreme Court Ogburn v. Elmore, 121 Ga. 72, 48 S. E. 702. When the case was called at the term of the court to which the petition was returnable, the plaintiffs offered to amend the petition by striking out the allegations that they were citizens and taxpayers, and interested as such in the revenue arising from the sale of liquors, that some of them were directly interested in the sale, and all references to and the prayer for injunction. The court refused to allow this amendment, and the plaintiffs excepted. The plaintiffs then offered a further amendment, in which it was. alleged that the judge on a given day had passed an order requiring three justices of the peace to recount the ballots in the election, and that such recount had been had, and a return made to the next term of the superior court after the institution of the contest, and wherein it was sought to amend the prayer by asking for a recount of the ballots and a return...