White v. Miller, 30123
| Decision Date | 16 September 1975 |
| Docket Number | No. 30123,30123 |
| Citation | 235 Ga. 192,219 S.E.2d 123 |
| Parties | David WHITE v. Raymond MILLER. |
| Court | Georgia Supreme Court |
Daniel D. Steir, Columbus, for appellant.
Moore, Worthington & Degenhardt, Samuel W. Worthington, III, Columbus, for appellee.
This is an appeal from a judgment dismissing a quo warranto proceeding. The single issue is whether the Georgia Election Code provides the sole and exclusive means for challenging eligibility to hold public office. We rule that it does not.
The suit was brought on February 13, 1975, by a citizen of Stewart County who was the defeated candidate in the election of November 5, 1974, for the office of school board member. The defendant was the successful write-in candidate who won by one vote. His right to hold office was challenged on the basis of his failure to comply with the provisions of the Georgia Constitution (Code Ann. § 2-1201a), which require a write-in candidate to provide 20 days notice of his intention of candidacy to the ordinary of the county, and to publicize his intention in the official organ of the county. The record shows that the defendant failed to comply with the publication requirement. While the quo warranto petition alleged a claim of right and title to the office on the part of the plaintiff, it was subsequently amended to strike this allegation.
The Election Code sets forth various grounds for contesting an election and one of these is the ineligibility of the candidate for the nomination or office in dispute. Code Ann. § 34-1705(b). A petition to contest the election must be filed within five days after the official consolidation and certification of the returns. Code Ann. § 34-1705(a). The defendant contends that this is the exclusive remedy to challenge eligibility to hold the office and that no suit was brought within the time provided in the Election Code.
The answer lies in the distinction between quo warranto and election contests: They do not serve precisely the same function, because an election contest is brought by or on behalf of the unsuccessful candidate, but quo warranto is brought by or on behalf of the people for the protection of the public. See Cutts v. Scandrett, 108 Ga. 620, 628, 34 S.E. 186 (quoting High's Extraordinary Legal Remedies); 65 Am.Jur.2d 246, Quo Warranto, § 24.
In Hulgan v. Thornton, 205 Ga. 753, 55 S.E.2d 115, this court held that an interested citizen and taxpayer of a county, although himself a defeated candidate for the...
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