Thompson v. Willson, 24059

• Decision Date: 18 May 1967
• Docket Number: No. 24059,24059
• Citation: 223 Ga. 370,155 S.E.2d 401
• Parties: H. F. THOMPSON v. Eleanor WILLSON et al.
• Court: Georgia Supreme Court

Page 401

155 S.E.2d 401

223 Ga. 370

H. F. THOMPSON v. Eleanor WILLSON et al.

No. 24059.

Supreme Court of Georgia.

May 18, 1967.

Syllabus by the Court

1. Where a mandamus petition prays for a rule nisi as provided in Code § 64-107, and such rule issues and is served, a motion to quash because process issued by the clerk pursuant to a prayer and was also served is without merit.

2. The voter in a municipal election as distinguished from a losing candidate is not required, even if allowed, to prosecute a contest as provided in the law. Mandamus is a proper remedy to compel the election managers to count his write-in vote in spite of the city charter which says it can not be counted when he attacks that law as being unconstitutional and void.

3. While the General Assembly has the power to prescribe the method of exercising the corporate power of a municipality, nevertheless, if it does so by authorizing voting procedures it can not limit the vote of an elector so as to deprive him of the right to vote. To refuse to count an elector's vote is tantamount to a refusal to allow him to cast it, and so much of Section 8 of Ga.L.1920, pp. 757, 763, which limits the voting to only candidates listed on a ballot violates the Georgia Constitution, Art. II, Sec. I, Par. II (Const. of 1945, Code Ann. § 2-702), and is void.

This is a mandamus action to compel election managers of a municipal election to count write-in votes in a general election for certain municipal officers, to declare certain portions of the city charter void as unconstitutional and to set aside the certificate of election of one of the candidates for office. The petition alleges that the plaintiff is a citizen, resident and an elector of the municipality in which the election was held and in which he and a majority of electors cast their votes for a certain person by writing in his name and striking the name of the person nominated for that office under the charter-that is, by having a nominating petition signed by at least 50 registered persons whose names appear on the last registration list of the city which, under the charter, was the only way a candidate for office could be voted upon in an election; that the defendants failed and refused to count the votes of the majority for the write-in candidate but instead certified all the votes cast in said election for the duly nominated candidate who in fact received fewer votes; that the specified portion of the charter is unconstitutional, null and void which attempts to restrict electors in elections to vote only for those candidates whose names appear on the ballot-that is, by stating that 'no person shall be voted for' as a candidate unless a nominating petition is signed by 50 electors in accordance with the charter of the city, and that it violates the Georgia Constitution which guarantees electors' right to vote for whom they please (Art. II, Sec. I, Par. II, Const. of 1945; Code Ann. § 2-702). A mandamus nisi issued, and at the hearing thereof, the court sustained a motion to quash the petition and process, the general demurrers to the petition, and denied the motion to make the city a party defendant. The errors enumerated are to each and every ruling of the court.

Alan B. Smith, Brunswick, for appellants.

Cowart, Sapp, Alaimo & Gale, Robert Asa Sapp, Brunswick, for appellee.

DUCKWORTH, Chief Justice.

1. The petition in prayer 'A' prays for the issuance of a rule nisi, and the judge issued same directing the defendants to appear on the 20th day of January 1967, at 2:30 p.m., and show cause why mandamus absolute should not be issued. This rule was attached to the petition and served upon the defendants. This is all the process that the law requires in mandamus cases. Code § 64-107. But there was also attached a process by the clerk directing defendants to appear within 30 days from service thereof. The motion to quash was on the ground that the clerk's process was not in conformity with the prayers therefor which was that the defendants appear at the time designated by the court. In support of this motion counsel cite Code § 64-107; McCoy v. Romy Hammes Corp., 99 Ga.App. 513, 109 S.E.2d 807; Malcom v. Knox, 81 Ga.App. 579, 59 S.E.2d 542; Seaboard Airline Ry. Co. v. Hollomon, 95 Ga.App. 602, 98 S.E.2d 177; Lee v. Wade, 104 Ga.App. 375, 121 S.E.2d 694; Burrow v. Dickerson, 108 Ga.App. 178, 132 S.E.2d 550. We think the cited law does not support the motion. The process attached by the clerk was surplusage as the rule nisi is the proper process in a mandamus case such as this under Code § 64-107, the same being a special statutory proceeding. Code § 81-102; Brown v. Cobb County, 212 Ga. 172, 91 S.E.2d 516. This ground of the motion to quash is not meritorious.

But we reject appellant's contention that this point was waived by the simultaneous filing of the plea and demurrers without expressly stating in the demurrers that they were filed subject to the plea. However, the remainder of the motion based upon nonjoinder of necessary parties is without merit since (1) a special demurrer is the proper procedure to raise the question; and (2) if the motion...