Hillsman v. Harris

Bleckley, Chief Justice.

1. The code, §484, provides that whenever it may be necessary and expedient to change the lines of a militia district, the ordinary may appoint three commissioners whose duty it shall be to lay out and define such lines and report the same to the ordinary. Section 486 declares, “ If the ordinary approves their report, he shall have all proceedings in the matter entered on his minutes, after which the . . line changed or defiued shall be known and regarded accordingly.” It would seem that the necessity and expediency of a proposed change are submitted by the law to the ordinary’s judgment and discretion. So too is the final result after action by the commissioners, — “ if the ordinary approves their report, he shall have all proceedings in the matter entered on his minutes, after which the . . line changed and defined shall be known and regarded accordingly.” No provision is made for reviewing the ordinary’s approval, or for having any trial or investigation upon which to predicate a review. The ordinary may appoint commissioners of his own motion. He is not required to wait for a petition ; and when there is a petition, there is no provision for answering or resisting it by other parties. In this respect the matter is somewhat like that dealt with in Meadows v. Taylor, 82 Ga. 738. The approval of the ordinary may be induced by anything that occurs to his own mind. He may act on his own personal opinion irrespective of any and all evidence. Indeed there is no provision for taking evidence or having any trial upon the question whatever. And the omission to furnish machinery for such a purpose was, we may suppose, not merely casual, but intentional. The work of changing the lines of militia districts is political rather than judicial in its nature, these districts being the political divisions of a county, and sustaining with reference to the county a relation somewhat like ‘.hat which the counties sustain to the State. We loubt, therefore, whether it is in the power of the superior coui’t to substitute by judgment upon a certiorari, or otherwise, its opinion for that of the ordinary as to the necessary and expedient location of district lines.

2. But assuming that the power to revise the approval )f the ordinary exists in such cases, we think there is no such manifest error in his approval in the present instance as would justify a reversal of his action. There is no suggestion of fraud or wilful abuse of discretion on the part of the ordinary ; and without that or something equivalent to it, we think his official decision as to where the district line ought to be should control. He is a local officer elected by the people of his county, chosen for his fitness to decide such questions ; and if the people are not satisfied with his administration, they will have an opportunity of dispensing with his services and substituting another in his place by popular election. His successor can restore the line to its former position if he shall deem it necessary and expedient to do so. As far as we can see, this is the only remedy, upon the facts in the record before us, for any mistake of judgment that may have been committed by changing the district line under consideration.

3. We are not to be understood as expressing any opinion as to whether a change of the district line will “fence” any of the territory not embraced in the district when the stock law was applied to it as the result of an election held for that purpose. That law as passed by the legislature (Code, §§1455a, 1455b) contemplated a system of interior and exterior fences, the interior being merely the land-lines, and the exterior actual, not ideal, fences. But because the means of constructing the exterior fences, viz. taxation of the district, was unconstitutional, that part of the scheme failed. Jones v. Sligh, 75 Ga. 7. But this failure did not defeat the scheme altogether. Dover v. The State, 80 Ga. 781; Holleman v. Kingery, 81 Ga. 824. Whether a mere legal, ideal fence enclosing a district would be removed by change of the district line, which certainly would not effect removal of a physical fence,' may be questioned. The statute provided for building a physical fence, but not for changing its location. Whether the ideal fence admits of change without a new election, is a question we need not now entertain, much less express any opinion of the yea or nay of.

But being satisfied that according to the law of the case, the establishment of the new line by the ordinary was authorized, and that his judgment as to where the line should be ought not to be interfered with, we think the superior court erred in sustaining the certiorari. Judgment reversed.