Seymour v. Almond , 1 Ga. L. Rep. 294 ( 1886 )

Jackson, Chief Justice.

This is a writ of error to the superior court of Elbert county to review the judgment of that court in declining to grant the writ of prohibition to the ordinary of said county, prohibiting that officer from declaring the result of an election ordered by that officer on the issue of fence or no fence.

There was no error in the denial of the writ for the following reasons:

1. First, the writ only issues to prohibit action by an inferior court. The ordinary, in respect to this election, is not a court or j udicatory, but an officer of the body politic of the state to whom is confided the ordering, supervision and announcement of the result of an election on the issue of fence or no fence.

2. If he acts in these matters as a court, then the writ of prohibition would only issue to stop him from acting as such court, if the subject-matter was beyond his jurisdiction. In this case the subject-matter in its entirety from the order for the election on the petition required by law, up to the declaration of the final result and the publication thereof, is within the jurisdiction of this officer and of no other officer.

3. No court is permitted by the statute authorizing the election and the decision thereon by the ordinary to interfere therein, as this court has decided ; and after these decisions of this court so construing this statute, the general assembly has been in session for months and no amendment has been made to the statute, or other action had by that body, disapproving of that interpretation of the statute, thereby tacitly approving of the judicial construction of the act on the point of the finality of the ordinary’s action.

4. Even if the superior court had jurisdictional power to intervene by prohibition, it ought not to do so before some action by the ordinary was had, indicating plainly that that officer would adjudicate, if a judicial officer, or act, if a mere official, quoad hoc, of the political power of the state contrary to right, justice and truth,—so plainly showing that he' would so act or adjudge as to overcome the world-wide presumption, that every public officer will do right until the contrary is manifest.

The principles hereinbefore .declared will be apparent by a glance at the following citations: 3 Chitty’s Blackstone, pp. 111, 112, 113, 114; Wells on Jurisdiction, §§516, 517, 48; High on Extra. Rem., §§768, 771, 772, 777, 780, 782; 784, 790; Wood on Man., pp. 101, 113, 115, 148, 149; Code, §3209; 61 Ga., 156.

Code, §1455; 69 Ga., 280, 283; 71 Ib., 205; Skrine et al. vs. Jackson et al., 73 Id., 377; Caldwell et al. vs. Barrett et al., Comm'rs, Ib., 604.

Judgment affirmed.