1. A petition filed with an ordinary, to contest an election for constable, which fails to state a ground for contest that the ordinary has jurisdiction to hear and determine should be dismissed; and since the petition in the instant case failed to state such a ground, the ordinary erred in refusing, on motion, to dismiss the petition, and his subsequent findings and orders were nugatory.
2. Unless the votes for an ineligible person are expressly declared to be void in an election contest proceeding for that purpose, the effect of such person receiving a majority of the votes cast is not to give the office to the qualified person having the next highest number of votes, but to invalidate the election.
No. 16637. MAY 10, 1949. On December 4, 1948, an election for constable was held for the 1322nd District, G. M., East Point, Fulton County, Georgia. R. C. Thompson received 166 votes, and Carl L. Stone received 275 votes. In the subsequent court proceedings they occupied different statuses as plaintiff and defendant, and for clarity and convenience will be referred to throughout this statement of facts and in the opinion as Thompson and Stone. The result of the election was duly reported by the election managers to the Ordinary of Fulton County, who certified the name of Stone to the county commissioners as having been elected. After giving the required bond and taking the oath of office, Stone was issued a commission and entered upon a discharge of the duties of the office of constable of the district. On December 16, 1948, Thompson filed with the ordinary a purported election contest, which was based on the sole ground that Stone, at the time of the election, was not qualified as a candidate for the office as provided by the laws of Georgia, Code §§ 24-803 and 24-402. He prayed that his contest of the election be inquired into and that he be declared the lawfully elected constable, rather than Stone. Stone field a motion to dismiss the proceeding, on the ground it was not an election contest as contemplated by the Code, § 34-3001, since it was not alleged therein that Stone did not receive the highest number of legal votes cast in the election, and that it raised a question which was judicial in its nature, and the ordinary did not have the authority to pass upon a judicial question *Page 244 such as the ineligibility or disqualification of a candidate who had received the highest number of legal votes. The ordinary reserved his opinion on the motion to dismiss, and heard evidence on behalf of both parties. There was no dispute concerning the legality of the votes cast for either candidate, or the results of the election. And it was uncontradicted that on the day of the election Stone was not a duly registered voter of the county. On January 4, 1949, the ordinary passed an order in which he held that Stone was not a qualified candidate for the office of constable on the day of the election, and that his name should not have appeared on the ballot. He held the election of Stone null and void, and declared Thompson the elected constable for the district. Based on this order, the clerk of the county commissioners administered the oath and issued a commission for the office of constable to Thompson.
Thereafter, and on January 12, 1949, Stone filed in the superior court a proceeding in the nature of a quo warranto to inquire into the right of Thompson to act as constable of the district. The suit was brought by Stone both as a citizen of the district, and as a claimant to the office. He later abandoned his claim to the office and admitted to the court that on the day of the election he was not a duly qualified voter of the county. The petition and information show the undisputed facts set out above and, in addition, it was alleged and contended by Stone that Thompson did not file a legal election contest with the ordinary as contemplated by the Code, § 34-3001; that the ordinary exceeded his jurisdiction and passed upon a matter over which he had no legal authority to pass; that the ordinary had no authority to declare one elected who received a minority of the legal votes cast, after first finding that the candidate who received the greatest number of legal votes was ineligible to hold the office because he was not a registered voter on the day of the election. Thompson filed a plea, designated as a plea to the jurisdiction, and demurrers, general and special, to the petition and information, by which he sought to have the proceeding dismissed on the ground that Stone, by participating in the contest, was bound by the ordinary's determination of the matter and had therefore exhausted his remedy. The plea and demurrers, which raised substantially the same questions, were *Page 245 overruled by the court, to which ruling exceptions pendente lite were duly filed. The trial judge, after hearing evidence and without the intervention of a jury, found that Thompson had no legal title to the office of constable, or right to assume to act as such, for the reason that Stone received the highest number of legal votes cast in the election, and the ordinary had no authority, after declaring Stone to be ineligible, to enter thereafter an order declaring that Thompson had been elected to the office. He further found that Stone was not eligible to hold the office for the reason that he was not a duly registered voter of the county on the day of the election. The commissions of office issued to both parties were ordered vacated, annulled, and canceled.
Thompson assigned error on the judgment ousting him from office and canceling his commission of office, and on the exceptions pendente lite. The only ruling before the court as to Stone concerns his right as a citizen to institute and maintain a proceeding in the nature of a quo warranto to inquire into the right of Thompson to hold the office. 1. "Whenever any contest shall arise over an election of any constable . . the same shall be filed with, heard and determined by the ordinary of the county wherein such contest may arise, under the same rules and regulations as to the mode of procedure as prescribed in contests where commission is issued by the Governor." Code, §§ 34-3001, 34-2801, 34-2802, 34-2803. The jurisdiction conferred upon an ordinary to hear and determine a contest arising out of an election of constable is limited, and he has no power other than that expressly conferred by statute.McDonald v. DeLaPerriere, 178 Ga. 54 (172 S.E. 1). In such a proceeding the ordinary does not act in a judicial or quasi-judicial capacity. Cutts v. Scandrett, 108 Ga. 620 (34 S.E. 186); Shirley v. Gardner, 160 Ga. 338 (127 S.E. 855). His sole authority and jurisdiction is "to determine . . whether the person filing the contest, or the one who was declared elected, received the greater number of legal votes, and, in case the contestant received it, to declare him duly elected." Walton v. Booth, 151 Ga. 452 (107 S.E. 63);Simpson v. Rimes, *Page 246 141 Ga. 822 (82 S.E. 291). And it is only where the decision and judgment of the ordinary is based upon a hearing as to which of the candidates received the greatest number of legal votes in the election, that such judgment is final and conclusive on the parties. Harris v. Glenn, 141 Ga. 687 (81 S.E. 1103);Tupper v. Dart, 104 Ga. 179 (30 S.E. 624); Kinman v.Monk, 179 Ga. 132 (175 S.E. 458); Burgess v. Friar,183 Ga. 386 (188 S.E. 526). Where the petition filed in a contest of an election fails to set out a valid and sufficient ground of contest, and a ground coming within the jurisdiction of the ordinary in such a case, it is error for the ordinary to refuse to dismiss such petition on motion made for that purpose.Norwood v. Peeples, 158 Ga. 162 (122 S.E. 618); West v.Lewis, 188 Ga. 437, 439 (4 S.E.2d 171).
In the present case, there is no contention that any vote cast in the election of constable was illegal, or that the result of the election as certified by the election managers to the ordinary was not correct. The sole ground of contest, as alleged in the petition filed for that purpose, was that Stone, whose name was certified as having received the greatest number of legal votes cast, was not qualified as a candidate for the office because he was not a duly registered voter of the county on the day of the election. Clearly this was an attempt to raise a judicial question, a determination of which would be without the scope of authority conferred on the ordinary in an election contest case. The ordinary therefore erred in refusing to dismiss the petition on motion of Stone, and the subsequent findings and orders were void. This being true, Stone, in the capacity of a citizen of the district, could thereafter institute and maintain a proceeding in the nature of a quo warranto for the purpose of inquiring into the right of Thompson to exercise the functions of the office of constable in the district under and by virtue of the void judgment of the ordinary. Code, § 64-201; Hathcock v.McGouirk, 119 Ga. 973 (47 S.E. 563); Malone v. Minchew,170 Ga. 687 (153 S.E. 773); Sweat v. Barnhill, 171 Ga. 294 (10) (155 S.E. 18).
2. Thompson, the plaintiff in error, contends that where a person who is ineligible to hold an office receives a majority of the votes cast in an election, the effect is not to invalidate the election, but to declare the qualified person who receives the next highest number of votes to be elected. He relies uponPearson v. *Page 247 Lee, 173 Ga. 496 (160 S.E. 369) as authority for that contention. While that decision contains some language which might appear to be in conflict with the ruling made by the trial court in the present case, yet the court was there dealing with a mandamus proceeding brought to require the clerk of the superior court to call an election for ordinary, and the question before the court was whether or not a vacancy existed in that office. The decision was not concurred in by a full bench, and if conflicting, must yield to older full-bench decisions which have passed on the identical question now before the court. In Dobbs v. Buford, 128 Ga. 483 (57 S.E. 777), this court held: "The effect where a person who is ineligible to hold the office receives a majority of the votes cast in an election is not to give the office to the qualified person having the next highest number of votes, but to invalidate the election; and in such a case a new election must be held." In Crovatt v. Mason,101 Ga. 246, 257 (28 S.E. 891), this court held: "In the case of the State ex rel. Hardwick v. Swearingen, 12 Ga. 23, this court held that a person receiving only a minority of the legal votes polled is not entitled to be installed into an office, notwithstanding the incumbent be removed on account of some personal disqualification. Under such circumstances a new election will be ordered. The American doctrine, supported by an undoubted preponderance of authority, is that though the candidate receiving the highest number of votes because of his ineligibility fail of an election, yet the votes cast for him are so far effectual as to prevent the election of other candidates, and there is no election at all. 52 Am. Dec. 149; 14 Wis. 497;13 Cal. 145; 21 La. 289; 53 Mo. 97; 47 Miss. 266; 66 Pa. 270. Unless the votes for an ineligible person are expressly declared to be void, the effect of such person receiving a majority of the votes cast is, according to the weight of American authority and the reason of the matter, that a new election must be held, and is not to give the office to the qualified person having the next highest number of votes."
Accordingly, the trial judge did not err in holding the election void because of Stone's admitted ineligibility, and in the judgment ordering the commissions of office issued to Stone and Thompson vacated, annulled, and canceled.
Judgment affirmed. All the Justices concur. *Page 248