Ogburn v. Elmore

• Citation: 48 S.E. 702,121 Ga. 72
• Parties: OGBURN et al. v. ELMORE, Ordinary.
• Decision Date: 15 October 1904
• Court: Supreme Court of Georgia

48 S.E. 702

121 Ga. 72

OGBURN et al.

v.ELMORE, Ordinary.

Supreme Court of Georgia.

Oct. 15, 1904.

EQUITY — ELECTION CONTEST — JURISDICTION— LOCAL OPTION LAW—INJUNCTION.

1. The general rule is that equity will not interfere in any matter growing out of an election which may be determined by a contest prescribed in the statute providing for the election.

2. The general local option liquor law providing that an election held thereunder may be contested for any cause which "impeaches the fairness of the election or the conduct of the ordinary" by proceedings instituted either in the superior court or before the ordinary, equity will not enjoin the ordinary from proclaiming the result of an election held under that law on the ground that notice of the election had not been published for the prescribed time.

3. Quære, whether persons who have voted at an election can attack it on the ground that notice had not been published as required by law.

4. Quaere, whether the failure to publish notice of an election the time required by law would invalidate the election, when all the electors had actual notice thereof.

(Syllabus by the Court.)

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

Action by W. H. Ogburn and others against J. S. Elmore, ordinary. Judgment for defendant Plaintiffs bring error. Affirmed.

On July 9, 1904, a petition was filed with the ordinary of Macon county asking that an election be ordered under the provisions of the local option law contained in Pol. Code 1895, § 1541 et seq., to determine whether intoxicating liquors should be sold in that county. On July 9th an order was passed submitting the question to the voters of the county. Notice of the election was published In issues of a local newspaper published on the 15th, 22d, and 29th days of July, and the election was held on August 8th. The number of registered voters in the county was 1, 424, and the number voting in the election was 1, 168. The ordinary declared that a majority of the votes cast had been against the sale, and was proceeding to complete the publication of the result of the election, when 294 of the persons voting at the election filed a petition asking that the further publication of the result be enjoined, and that an order be issued to three justices of the peace requiring them to recount the ballots cast at certain precincts. The petition was based upon the ground that notice of the election had not been published once a week for four weeks, as required by the statute, and upon numerous other grounds. The defendant demurred to the petition, and also filed an answer. At the hearing affidavitswere introduced showing that the 256 registered voters who did not participate in the election had actual notice of it and of the purpose for which it was called. The judge refused the injunction, and the petitioners excepted. The only ground upon which it is insisted in this court that the injunction should have been granted is that the notice of the election was not published once a week for four weeks, as required by the statute.

Jos. H. Hall and Malcolm D. Jones, for plaintiff in error.

Greer & Felton and Hall & Wimberly, for defendant in error.

COBB, J. (after stating the foregoing facts). Elections by the people, either for the choice of public officers or for the determination of other matters submitted to the popular vote, being the exercise of the political power, the general rule is that a court of equity will not interfere in any matter concerning the same. However, if, under the guise of an election which is really unauthorized by law, the property or person of the citizen is imperiled, equity will interfere. Mayor of Macon v. Hughes, 110 Ga. 795 (2), 36 S. E. 247. In the present case neither the property nor person of any citizen will be imperiled by the election. The right to sell liquor is not a property right, and this is the only right of any person alleged to be imperiled. If the statute under which the election is held provides a method for contesting the same or inquiring into its validity, this provision is exclusive, and neither a court of equity nor a court of law can give any relief, the...