Ogburn v. Elmore

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

48 S.E. 702

121 Ga. 72

OGBURN et al. v. ELMORE, Ordinary.

Supreme Court of Georgia

October 15, 1904

Syllabus by the Court.

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. Quaere, 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.

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.

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 only remedy being that provided in the statute. The general local option law, under which the election in the present case was held, provides that the election may be contested for any cause which "impeaches the fairness of the election or the conduct of the ordinary." Pol. Code 1895, § 1546. The superior court has, under the act, jurisdiction to hear the contest under certain circumstances; and it has been held that the ordinary may, before he declares the result, hear any contest that may grow out of the election. Drake v. Drewry, 109 Ga. 399, 35 S.E. 44. Where the Legislature provides for an election to determine a question of the character set forth in the law under which the election in this case was held, and "there is no provision made in the law for judicial interference, and no authority exists at common law for the same, then neither a court of law nor equity has any power or jurisdiction over the matter, but the matters arising out of such elections must be determined alone by the tribunal constituted by the Legislature for that purpose, and the courts are powerless to interfere unless the Legislature in their wisdom shall see proper to confer such power on the courts." Caldwell v....