Heath v. Bellamy

82 S.E. 665, 15 Ga. App. 89, 1914 Ga. App. LEXIS 25

• Court: Court of Appeals of Georgia
• Decided: August 22, 1914
• Docket: 5679
• Status: Published

Opinion

Russell, C. J.

1. An election upon the stock law, and the supervision thereof by the ordinary, “being the exercise of political and police powers incident to legislative and executive government, and not, in their general political and police effect, at all judicial, the courts have no jurisdiction to interfere except as conferred by the act itself.” Scoville v. Calhoun, 76 Ga. 263; Ogburn v. Elmore, 121 Ga. 74 (48 S. E. 702).

2. Questions relating to examining and counting the returns in an election to settle the question of “fence or no fence” must be made before the ordinary proclaims the result. Dyson v. Pope, 71 Ga. 205; Woodard v. State, 103 Ga. 500 (30 S. E. 522) ; Drake v. Drewry, 109 Ga. 399, 404 (35 S. E. 44).

3. The ruling in this case is controlled by the decision of the Supreme Court in Mize v. Speight, 82 Ga. 397. See also Irvin v. Gregory, 86 Ga. 611 (9 S. E. 1080). It was not error to dismiss the certiorari and render final judgment in the case.

Judgment affirmed.

Roan, J., absent.

The ordinary testified, that he had “called several no-fenee or stock-law elections for Wilcox county. One election—the one immediately preceding the last election—was held the first Wednesday in July, 1912, and the result was 38 in the county for fence. The next one preceding this one was held in 1911 for the 1158th district, and resulted in one majority for no fence in the 1158th district; however, it was agreed by both factions that no result should be proclaimed, and none was. It was decided by the voters on both sides to treat the election as a nullity, and the ballots cast in said election for the 1158th district were destroyed.” The plaintiff put in evidence a certified copy of an order of the ordinary, directing that an election be held in the 1158th district, G. M., of Wilcox county, on the first Wednesday in July, 1911, in which “the question of no fence or stock law” should be submitted to the voters of the district.

The justice’s court entered judgment awarding the possession of the cows in question to the defendant. The plaintiff sued out certiorari, alleging that the judgment was error of law, and was without evidence to support it. The judge of the superior court overruled the certiorari and entered final judgment in favor of the defendant. Counsel for the plaintiff contended that the election held in 1913 was void,—that, because of the preceding election, it could not lawfully be held at that time, and that the ordinary had no authority to count the votes and consolidate the returns.

E. H. Williams, for plaintiff, cited: Civil Code, §§ 126, 2036; Dyson v. Pope, 71 Ga. 205; Reese v. Gay, 92 Ga. 309; Nelms v. Pinson, 92 Ga. 441. M. B. Gannon, for defendant, cited: Irvin v. Gregory, 86 Ga. 611; Chamblee v. Davis, 115 Ga. 267; Civil Code, §§ 126, 2036.