Tolbert v. Long

• Decision Date: 19 March 1910
• Citation: 67 S.E. 826,134 Ga. 292
• Parties: TOLBERT v. LONG, Ordinary, et al. O'KELLEY et al. v. SAME.
• Court: Georgia Supreme Court

67 S.E. 826

134 Ga. 292

TOLBERT v. LONG, Ordinary, et al.

O'KELLEY et al. v. SAME.

Supreme Court of Georgia

March 19, 1910

Syllabus by the Court.

Equity will entertain jurisdiction of a petition by a citizen and taxpayer to enjoin against the declaration of the result of an election held under a special act establishing a board of commissioners for a named county, defining their duties etc., which act provides that it shall not become operative in the county unless ratified by a vote of the people, where it is charged that the whole act is unconstitutional, or infected with other illegality, frustrating the legislative plan of ratification.

Under the fact of this case, the amendment and the second petition did not amount to a second application for injunction to restrain the performance of the same act.

The act approved August 16, 1909 (Acts 1909, p. 425), providing for the creation of a board of commissioners for Madison county defining their duties, etc., and which further provided that the act should not go into effect until ratified by the people of the county, clearly discloses the legislative plan to be that all persons voting at such election should be constitutionally qualified voters; and as the designation of such voters in the twenty-first section of the act totally disregarded the added suffrage qualifications prescribed by the constitutional amendment of 1908, the legislative plan of referendum to the constitutionally qualified voters was defeated.

For the reasons given above, it becomes unnecessary to decide the other constitutional objections raised against the act.

Error from Superior Court, Madison County; D. W. Meadow, Judge.

Actions by H. H. Tolbert and by S.C. O'Kelley and others against A. H. Long, Ordinary, and others. Judgments for defendants and plaintiffs bring error. Reversed.

Jno. E Gordon, Geo. C. Thomas, and Jno. J. Strickland, for plaintiffs in error.

Cobb & Erwin and Henry C. Tuck, for defendants in error.

EVANS P.J.

On August 16, 1909 (Acts 1909, p. 425), an act was approved creating a board of county commissioners for the county of Madison, and providing that the same should not go into effect until ratified by the people of the county. H. H. Tolbert, who held the office of county commissioner under a prior act (Acts 1906, p. 441), in his capacity as holder of that office, as well as a citizen and taxpayer of the county, applied for an injunction to restrain A. H. Long, ordinary, from calling the election provided for in the act. The injunction was refused, and Tolbert excepted. The bill of exceptions of Tolbert was dismissed by the Supreme Court, because it appeared that no supersedeas had been granted, and the election had been held prior to the hearing in this court. Before the judgment of the Supreme Court was made the judgment of the superior court, Tolbert amended his petition, alleging that the election had been held and that a majority of those voting thereat had voted in favor of adopting the act, and also that an election had been held under the act for the three commissioners therein provided for, and that White, Davis, and Fitts had received the highest number of votes, and claimed to be elected as commissioners. The attacks made upon the validity of the act in the original petition were renewed in the amendment, and the prayers were that the ordinary be enjoined from declaring the result of the two elections and that the persons elected as commissioners at the latter election be enjoined from performing any duties as such by virtue of their election. A rule nisi was granted for a hearing on January 8, 1910.

S. C. O'Kelley and others, alleging themselves to be citizens and taxpayers of the county, also filed their petition to enjoin the ordinary from declaring the results of the two elections held under the act of 1909, and to enjoin the three new commissioners from acting as such, and to enjoin Tolbert from turning over the papers in his possession as county commissioner to the new commissioners. The same attack made upon the validity of the act of 1909 in the petition of Tolbert v. Long, Ordinary, was made in this petition. A rule nisi was granted, requiring the ordinary and the three new commissioners to show cause on January 8, 1910. Agreeably to these orders, the defendants showed cause by demurrer and by answer, and after hearing the evidence the court refused a temporary injunction, and the plaintiffs in the two suits sued out their respective writs of error.

By demurrer it was urged that the court was without jurisdiction to interfere in any way with the holding of the election. This court on several occasions has adverted to and recognized the general principle that a court of equity ordinarily will not interfere with the holding of elections by virtue of the exercise of the political power for the determination of the choice of public officers or other matter submitted to a popular vote. The general rule has been applied in the case of persons who claimed that they would be deprived of their right to engage in a particular business, if the special law was made effective by a popular vote. In such cases it was held that the attack on the law on the ground that its operation is destructive of property, or property rights, in advance of the election declaring it operative, was premature, and that the courts will wait until the law is attempted to be put into operation, before the person who claims injury to, or destruction of, his property will be heard to complain of the unconstitutionality or illegality of the law. Scoville v. Calhoun, 76 Ga. 263; Clayton v. Calhoun, 76 Ga. 270. Nor will a court of equity entertain original jurisdiction in the contest of an election. Caldwell v. Barrett, 73 Ga. 604; Ogburn v. Elmore, 121 Ga. 72, 48 S.E. 702; Harris v. Sheffield, 128 Ga. 301, 57 S.E. 305. But an exception has been recognized to the general principle, where the constitutional rights of a citizen and taxpayer are sought to be invaded by an attempt to make an unconstitutional or inapplicable law operative through the means of popular election. Mayor, etc., of Macon v. Hughes, 110 Ga. 795, 36 S.E. 247; Town of Roswell v. Ezzard, 128 Ga. 43, 57 S.E. 114; Maysville v. Smith, 132 Ga. 316, 64 S.E. 131; County of De Kalb v. Atlanta, 132 Ga. 727, 65 S.E. 72.

The equitable jurisdiction in those cases arises out of the necessity of adequate protection of the constitutional rights and guaranties of citizenship, which...