Pickering v. Campbell , 146 Ga. 636 ( 1917 )

Hill, J.

(After stating the foregoing facts.) Error is assigned because the court refused to grant the injunction prayed for, and erred in authorizing the ordinary, J. M. Campbell, to take charge of the county affairs, as provided for in the act of the General Assembly as set out in the foregoing statement of .facts. It' 'is insisted that the acts under consideration are nugatory and void for indefiniteness and uncertainty. The first act was to be ratified by the people at an election held for the purpose of abolishing the board of roads and revenues of Murray county, “said election to be called by the ordinary at the next democratic State primary election to be held September 12, 1916.” And the provision of the other act, relative to the ratification of that act at the election, was as general and indefinite as the first. The ordinary in his notice calling the election, among other things, stated that “The above-named election shall be held, and ballots prepared by the democratic executive committee of said County of Murray, by the managers named by them, and the returns made as provided by law in holding such primary elections, and a copy of the consolidation of the returns by the managers shall be certified to by them and returned to the office of the ordinary of Murray County, from which said ordinary shall declare the results of the election hereby called.” In the case of Cook v. State, 137 Ga. 486 (73 S. E. 672), it was held that an act to abolish the city court of Newton (Acts 1910, p. 201), which provided that “the provisions of this act shall become of full force and effect only when ratified by a majority of the votes east by the qualified voters of Baker county at an election to be held for the purpose of submitting the provisions of this act to the qualified voters of Baker county for their approval, which said election shall be held on the same date as the general election of State officers of Georgia is held, and those who wish to cast ballots for the provisions of this bill shall do so by casting ballots having written or printed upon them the words, ‘Against the city court of Newton,’ and those who.wish to cast ballots in favor of the city court of Newton and against the provisions of this bill shall do so by casting ballots having written or printed on them the words,’‘For the city court of Newton/” was “nugatory and ineffectual to abolish the city court of Newton, on the ground that it fails to provide ‘how the election therein mentioned shall be held, who shall hold it, and to whom the returns of the election shall be made, and whose duty it shall be to declare the result of said election/” And see Tolbert v. Long, 134 Ga. 292 (67 S. E. 826, 137 Am. St. R. 232). Mr. Justice Lumpkin and the writer dissented from the'majority opinion in the Ooolc case, 'but the facts in that and the present case are quite different. In that case the election was to be held on the same date when the general election of State officers was held, and the votes were to be cast by legally qualified voters, etc. But in the present case the election was to be and was held, and the ballots prepared, by the democratic executive committee of Murray county. It is true that in the notice of the ordinary, and in one of the acts under consideration, it was provided that the act was to be submitted to' the “qualified voters” of Murray county at an election to be held on the date of the democratic primary election; but there is no machinery provided in the act for holding the election, declaring the result, etc., and this could not be supplied by the ordinary, who was not directed by the acts how the call should be made, the election held, and the result declared, and who was interested in the result of the election, which was also to be held by members of one political party, at an election where it was shown by the party rules and regulations that only “white electors who are democrats and qualified to vote in the general elections, who in good faith will pledge themselves to support the democratic candidates for all offices to be voted on this year,” were qualified to vote. It was alleged and proved that at least four legally registered colored voters of the county of Murray would not be permitted to vote at said election. White republicans would also be excluded, under this rule, from voting. In such election, under such rules, it could not be said that the acts off the General Assembly under consideration, or either of them, were “submitted to the qualified voters of Murray county,” or were “ratified by the people” or by the “legally qualified voters” of the county. This being so, the court erred in not granting the injunction, and in authorizing the ordinary to take charge of the county affairs.

Judgment reversed.

All the Justices concur.