Skrine v. Jackson

• Decision Date: 16 September 1884
• Parties: SKRINE et al. v. JACKSON et al.
• Court: Georgia Supreme Court

73 Ga. 377

SKRINE et al. v. JACKSON et al.

Supreme Court of Georgia.

September 16, 1884

September Term, 1884.

1. Under the act of 1872 (Code, §1449), the ordinary is required, under certain circumstances, to order an election to determine the question of " " fence" or " no fence; " the returns are to be made to him and he is required to examine them and decide upon all questions that may arise out of the election, and proclaim the result. This is a part of the political power of the state which the legislature has seen fit to confer upon the ordinary; and without some authority vested in the judicial department, it cannot intervene or interfere in any manner with the power so granted to him. No provision is made by the act for any review of the decision of the ordinary, and it seems to have been contemplated that his action should be final and conclusive.

( a. ) Neither the common law remedy by information in the nature of a quo warranto is applicable to the case, nor is there any statute authorizing the courts to inquire into the legality of such an election.

2. If the courts had jurisdiction in such a case, the remedy should have been sought before the ordinary had acted and the result had been proclaimed. After the ordinary had decided the questions before him and proclaimed the result of the election, it was then too late to seek redress by injunction.

Elections. Ordinary. Fence. Government. Constitutional Law. Quo Warranto. Injunction. Before Judge RONEY. Richmond Superior Court. April Term, 1884.

Quintillian Skrine et al., citizens and freeholders of Richmond county, filed their bill against George T. Jackson et al., also citizens and freeholders of the same county and all others agreeing with them in the election stated below, alleging, in brief, as follows: An election to determine the question of " fence" or " no fence" was held in Richmond county; the ordinary declared the result in favor of " no fence," and defendants were threatening to put into execution §1455 of the Code, under this election, by impounding stock running at large after July 1, 1884, and thus injuring the owners and begetting vexatious litigation. Outside of the city of Augusta (which has an ordinance regulating the running at large of stock), this law is not suitable or beneficial, much of the land being too poor or too marshy for cultivation, but furnishing grazing for cattle, and many of complainants being, in whole or in part, dependent for a living on their stock and unable to raise them without such grazing. The election was illegal and the proceeding void for the following reasons:

(1.) Because several petitions, signed by ninety-three citizens and freeholders who desired an election (forty-six of them being citizens of Augusta), were filed with the ordinary on the same day; counter-petitions, signed by one hundred and sixty-eight citizens and freeholders, were filed; no other " supporting" petition was filed, but the election was ordered.

(2.) Because the election was held on January 8, 1884, and the decision of the ordinary in favor of " no fence" was announced and published on January 10, before complainants, who resided out of the city, could be made aware of the count.

(3.) Because the election in the city of Augusta was not held in the several militia districts therein, but was ordered by the ordinary to be held, and was held, at the court-house alone and if the vote of the city be rejected, there was a large majority for " fence" in the country districts.

(4.) Because the law under which this election was held was contrary to the constitution of the United States.

(5.) Because the law is not applicable to Richmond county as a whole, whatever might be the case as to the districts of the county.

The prayer was for injunction to prevent the defendants " and their confederates" from carrying into effect the stock law under this election by seizures and impoundings and for subpœ na.

Defendants for cause why injunction should not be granted, showed, in brief, as follows: " There is no equity in complainants' bill, and the court has no jurisdiction. They had an adequate remedy at law, of which they did not avail themselves, and they are now estopped thereby; and if this action lies at all, it is premature." They denied that no " supporting" petition was filed, cited the minutes of the ordinary, in which it was stated that one was filed, and insisted that complainants could not go behind the judgment of the ordinary. They denied that complainants did not have ample time to learn the result of the election and file objections before it was declared by the ordinary, the returns being in, as required by law, by 12 M. on January 9, and twenty-four hours or more having elapsed thereafter before a declaration of the result. They denied that, under the acts regulating the corporate limits of the city of Augusta and the militia districts and voting precincts therein, there was any other proper place than the court-house for the opening of polls in such an election. (On this subject reference was made to the Acts 1809, 1818, 1820, 1870, 1882, 1883; also Acts of 1823, p. 73; of 1830, p. 104; of 1836; of 1837, p. 88; of 1834, p. 89; of 1879, p. 31; of 1859, p. 55.) Defendants are not only real estate owners in Augusta, but also are large land owners outside of the city. They deny any knowledge of anything illegal or unconstitutional in the matter complained of, " and plead a want of jurisdiction in this court to grant any of the relief prayed for by complainants."

" And these defendants also pray that this court will adjudicate and determine the legal effect of the action of said ordinary, as set forth in the exhibits hereto annexed as a court selected by law, under the constitution of this state, that the same is final and conclusive, and that complainants, as citizens,...