Lowe v. Lindsey

154 S.E.2d 11, 223 Ga. 173, 1967 Ga. LEXIS 456

• Court: Supreme Court of Georgia
• Decided: February 23, 1967
• Docket: 23953
• Status: Published

Opinion

Niohols, Justice.

Wyman C. Lowe, as the runner-up in the Democratic primary for the office of U. S. Congressman for the Fifth District of Georgia, held on September 14, 1966, filed the present action after the party nominee withdrew from the race and the Fulton County Democratic Executive Committee named Archie Lindsey, who had not been a candidate for such nomination in the primary, as the official nominee of the party to run in the general election in November, 1966. The petition as originally filed sought to have the plaintiff declared the party nominee, and a substitute petition filed as an amendment to the original petition, sought a special primary to name the Democratic nominee for such office. The petition as finally amended named only the substitute nominee and the State Democratic Executive Committee including its primary subcommittee as defendants. No county or State officials were named as defendants in the plaintiff’s petition as finally amended. On November 1, 1966, the defendant’s general demurrers to the plaintiff’s petition were sustained and on November 7, 1966, the plaintiff filed a notice of appeal to the judgment sustaining such demurrers and dismissing his petition. Held:

1. The petition as finally amended sought relief against party officials of the Democratic Party only. No relief was sought against any county or State official who was required to hold the general election, certify the results or issue a commission as a result thereof. The election was held on November 8, 1966, and the nominee of the Democratic Party named in the plaintiff’s petition was not elected, a commission having been issued by the Governor to Fletcher Thompson on December 12, 1966, as the elected U. S. Congressman from the Fifth Congressional District of Georgia.

Submitted February 15, 1967 — Decided February 23, 1967— Rehearing denied March 9, 1967. Wyman C. Lowe, for appellant. Edenfield, Heyman & Sizemore, Newell Edenfield, Paul L. Hanes, Robert G. Young, for appellees.

2. The courts of this State are bound to take judicial notice of the public officers who hold under commissions issued by the Governor. Hartford Accident &c. Co. v. Mapp, 96 Ga. App. 517 (100 SE2d 742), and citations.

3. The Governor is required by law to issue commissions to Representatives in Congress. Code § 40-203.

4. There being no relief sought against the person elected to Congress in the general election, or against the election officials required to hold and certify such election results, the questions presented by the plaintiff’s petition as finally amended are moot. Accordingly, the appeal must be dismissed.

Appeal dismissed.

All the Justices concur.