dissenting. It appears from the record in this case that a petition was brought by nineteen persons, claiming to be residents and legal voters of Spalding county, before the ordinary, for the purpose of contesting an election held in that county under the “local option liquor law.” One ground for this contest was an allegation made only in general terms, that the result declared by the managers of the Griffin precinct was not a fair and just count; and there was a prayer for a recount of the ballots in that box. The other grounds in the petition alleged that in various other precincts in the county illegal votes were cast; and the purpose of the petition was to go behind the returns of the managers of these precincts, with the view of instituting an examination into the ballots that were cast, for the purpose of throwing out a number of voters alleged to be illegal for various reasons. The purpose, therefore, of this petition was to have the ordinary, as a judicial tribunal, hear and determine a contested-election case involving issues *410which for their proper determination and investigation necessarily involved going behind the returns of the election managers, an examination of the ballots cast, and the hearing of testimony upon the various issues touching the qualifications of a number of voters who had participated in the election. It is claimed that the ordinary has authority to entertain, hear, and determine such a contest, by virtue of the provisions of section 1545 of the Political Code. By this section it is made the fluty of the managers of the election “to deliver one list of the voters and tally-sheets to the clerk of the superior court, to be filed in his office, and one list of the voters, ballots, and tally-sheets to the ordinary, who shall carefully consolidate the returns, and decide all questions and contests arising under elections held by virtue of this Article.” This is the only language in the entire act that gives the ordinary any power whatever to decide questions and contests arising under such an election. There is nothing in the act which expressly or by implication prescribes any procedure by which such a contest shall be heard and determined by the ordinary. It nowhere specifies who may file a petition for such a contest, what number of voters have a right to present to him such a judicial question, and, after presented, what notice, by service, publication, or otherwise, should be given of the proceeding; and if an effort be made to go into the ballot-box for the purpose of attacking and throwing out certain votes as illegal, no means is prescribed for the accomplishment of such an end. It does not even give the power to subpoena witnesses or to take depositions, and no provision whatever is made for the payment of costs of officers of court, however the contest may terminate. It would certainly be an anomaly in law to endeavor to enforce a statute giving in such general terms power to an official to decide questions and contests relating to a public election, and not prescribing any method whatever by which such contests shall be instituted, how issue may be joined thereon, and how or when the questions involved shall be heard and determined. In all the laws of this State, of which I am aware, upon the subject of contested elections involving regular judicial proceedings in court, the means of making, investigating, and de*411termining such a contest are prescribed by the statute. For instance, sections 107 to 109 inclusive of the Political Code, relating to contests over the election of any person requiring a commission from the Governor, prescribe minutely and particularly the form and manner of instituting such a contest, notice that shall be given, how, when, and before whom the case shall be tried, how testimony shall be taken, and particularly what proceedings shall be instituted when the election is contested on the ground of illegal votes. Section 111 of the Political Code adopts these regulations, and makes them applicable to contests arising over the election of the various officers therein mentioned.
Even, then, if it had been the intention of the legislature to confer upon the ordinary the power to judicially hear and determine a contested-election case, especially of the character presented by this record, the act has left that official powerless to accomplish its purpose, in that it does not provide him with the means, or in any manner indicate by what procedure his work may be accomplished. It will be noted that in public elections ordinarily the managers of the various precincts in the county, or a certain number from each precinct, assemble at the county-site for the purpose of consolidating the vote. These managers necessarily at times have questions arising before them, touching the returns, and relating to a consolidation of the votes. In the local option act in question it will be observed that the general rule of elections touching the conduct and duties of managers who meet to consolidate the vote of a county does not prevail; for, under section 1545 of the Political Code, it is made their duty to deliver the returns to the ordinary, and made his duty to consolidate such returns. Manifestly, thei), as to this duty, the ordinary occupies very much the position that managers would occupy generally under other elections in Georgia; and the fact that the section cited confers the power upon the ordinary to “decide all questions and contests arising ” can not imply that he can enter into a regular judicial contest, when the law nowhere makes any provision as to how he shall conduct such a contest. Therefore, the “questions and contests” mentioned in the act must *412refer to such questions as may arise touching the consolidation of the returns, and which have to be decided before the result can be declared. This by no means makes the provisions of the act as to the ordinary’s powers meaningless. Many questions may arise which a board of managers, even in ordinary elections held in the State, would necessarily be called upon to determine before completing the consolidation. For instance, the returns of certain managers might show upon their face that an election was not held at any precinct at all, but that the votes were cast at an improper place, not recognized by law; or they may show upon their face that an election at a precinct was held at an improper time not authorized by law. Manifestly, it would be the duty of the managers to discard such returns. Accordingly, it was held in Walker v. Sanford, 78 Ga. 165, the ordinary acted properly in refusing to count the vote of a precinct where one of its managers was disqualified. Other instances might be cited where mere ministerial officers, in order to consolidate and declare a result, would have to determine questions; but it by no means follows that in any event, without special grant of legislative authority, can such officials constitute themselves into a judicial tribunal for the purpose of entering into an investigation of a contested-election case. Even, then, if we construe the provisions of the act, embodied in section 1545 of the Political Code, without any reference whatever to other portions of the act Relating to contests over such elections, I do not think the ordinary could assume the power of hearing and determining the contest he has undertaken in this case. If the legislature in this instance intended to create a new court for the purpose of hearing such contests, it abandoned its wish before the job was completed, and left it an incomplete judicial structure unsupplied with such machinery as is essential to its active operation.
If that provision of the statute touching the powers of the ordinary stood alone and unmodified or unexplained by any other provision in.the act, he would have been left practically with the same powers delegated to that officer in the act regulating elections for no fences. The latter part of section 177 of the Political Code provides that “The returns of said election [that *413is, election on the fence law] shall be made to the ordinary of said county, who, after examining the same and deciding upon all questions which may arise out of said election, shall proclaim the result by notice as aforesaid.” The act further provides that if a lawful majority is for “ no fence,” then the provisions of the law shall go into effect. It is true the word “contest” is not used in that act, but words are used equally as broad and as comprehensive, giving power to the ordinary to decide upon all questions which may arise out of the election; and besides it seems to contemplate that it is the “ lawful” majority the ordinary must ascertain ; and perhaps with more force may it be implied, under the terms of this act, that one has a right to contest the election before the ordinary, if such a contest be necessary to show the lawful majority. I infer from the learned argument of Mr. Justice Little, in support of the views of the majority of this court, that it is concluded that the ordinary, under the act in question, is constituted a judicial tribunal, and, as a court, has the power to determine a contested-election case under this local option law. As to the fence law, this court is committed to a contrary proposition in regard to the powers and duties conferred upon the ordinary by virtue of the provisions of that act. In Seymour v. Almond, 75 Ga. 112, it is decided: “ The ordinary, in respect to an election tó decide the question of fence or nor fence, is not a court, but an officer of the body politic of the State, to whom is confided the ordering,supervision, and announcemen tof the result of an election on that issue.” It is further decided : “If he acted in these matters as a court, the writ of prohibition would issue only to stop him from acting as such, if the subject-matter was beyond his jurisdiction.” But this particular question, so far as concerns powers of an ordinary under the fence law, was directly decided bjr this court in Harris v. Perryman, 103 Ga. 816. It was there held that the language which we have above quoted from the fence law “ does not authorize or provide for any contest before the ordinary as to the result of such an election.” It appears from the facts in that case that application was made to the ordinary for the purpose of contesting an election that was held on the question of fence or no *414fence. The ordinary refused to entertain the contest. A petition for mandamus was filed by the contestants, in the superior court, for the purpose of compelling the ordinary to entertain and pass upon the contest presented in the form of a petition by citizens and taxpayers. The mandamus was refused, and this judgment was affirmed by this court; the ground of its affirmance being based upon the principle above noted, that the act itself did not authorize or provide for any such contest. The reason for the decision is fully and clearly set forth by Mr. Justice Fish in his opinion on page 818, in the following language : “ If the legislature intended by this language to confer upon any one the right to contest an election of this kind and to make it the duty of the ordinary to hear and decide such a contest, it seems very strange, indeed, that none of the usual provisions in reference to contested elections are found in the section of the code relating to these elections. How an issue shall be formed, who shall be necessary parties to it, what notice of the contest shall be given, upon whom and how long prior to the hearing it shall be served, before whom evidence shall be taken, the authority to examine suspected ballots, etc., are all questions upon which the law applicable to these elections is absolutely silent.”
In this connection attention is called to the case of Echols v. State, 56 Ala. 136, cited in the opinion of Mr. Justice Fish. By reference to the facts reported in that case it will be seen that, under the charter for the city of Opelika, the city council were authorized to examine and count the votes; made judges of the election, with full power to determine all matters in relation thereto, ascertain the legality of voters, reject illegal votes, take testimony, examine witnesses, send for persons and papers, and decide who were legally elected mayor and aldermen of the city. Certainly this provision in the Alabama statute is a much more comprehensive one, and enters more minutely into detail, with reference to passing upon all issues that might grow out of a contest over an election, than is embodied in the local-option liquor law of this State,, in so far as concerns the powers it.confers on the ordinary. Yet it was decided by the Supreme Court of Alabama, that there was “nothing in the *415statute which gave to this proceeding the form, solemnity, or sanction of a contested election, no provision for instituting any such investigation by any dissatisfied elector, and nothing said about notice, or issue to be formed.” This is the reason assigned by the court for its conclusion. It was, therefore, held that the provision in the statute referred to “ the primary count and reckoning of the ballots.” The same principle, that no such judicial power has been conferred on the ordinary, has in effect by this court been applied to the local-option liquor law in Scoville v. Calhoun, 76 Ga. 263. That was also a petition for a mandamus to the superior court, made with the view of preventing the ordinary from declaring the result of an election held under the local option act of 1885, until he had passed upon a petition, which the plaintiffs had presented to him, contesting the election. It was held that the court properly refused to grant the mandamus; and the reason for the decision was, that the election and the supervision thereof by the ordinary was the exercise of political and police powers incidental to legislative and executive government, and not, in their general political and police effect, at all judicial. It was therefore decided that it was proper to refuse a mandamus on the application of a few persons, less than one tenth of the voters, to compel the ordinary of a county, where an election had been held, to receive and hear a contest made and offered to be filed with him touching the election. If the local option act of 1885 were intended to create the ordinary a court, or to give him power, as a judicial tribunal, to decide such a contest; and if, according to the opinion of the majority of the court in this case, it would be not only his right but his duty to hear and determine such a contest, a mandamus would certainly lie to compel-a hearing and disposition of the case in the event the ordinary refused to entertain a petition for such a contest.
The above views'are based upon what I think would be a proper construction of section 1545, even if it stood alone in the act, so far as providing for a decision of questions and contests arising under the election. But when considered in the light of the section that follows, the conclusion reached is, if possible, the more irresistible. Section 1546 expressly provides for *416a contest of this nature in the superior court of the county where the election was held. It prescribes when such contest may be made; how and by whom it shall be made, to wit, by petition of one tenth of the voters who voted at the election, and within twenty days from the time the ordinary declares the result; what the petition shall contain; what direction the judge shall give the case; the means by which testimony can be taken, or the ballots recounted by three justices of the peace under an order of court; and when the case shall be heard and determined. In short, it goes into minute details as to what procedure shall be adopted in order to bring about a hearing and determination of such a contest. This section makes it a judicial question, and specifies the particular court that shall have jurisdiction over the contest. If a literal, broad and comprehensive meaning is given the language employed in section 1545, as has been placed thereon by the majority of my brethren, then we have the anomalous and perhaps unparalleled feature in a law touching a particular public election, wherein two judicial tribunals are created and clothed with the jurisdiction of hearing a contest over the election. In the one case the ordinary, whose jurisdiction is limited in law, can hear such a contest upon the petition even of one voter, and can, at his own option or discretion, if he can do so at all, prescribe the manner of procedure, fix the time and place of hearing, and what notice shall be given. In the other case, power is given to a court of general jurisdiction, prescribing who and what number shall have a right to make the contest by petition, and the steps that shall be taken throughout the prosecution of the case. There is nothing in the section giving jurisdiction to the superior court which in the least indicates that it is only of an appellate nature. It is virtually conceded, however, by the argument of the majority of the court that the superior court’s jurisdiction is not of an appellate nature; that questions of contest may be made before it that were never heard or passed upon by the ordinary; that both, so to speak, are courts of original jurisdiction. In other words, that the ordinary may decide the result of the election on one ground of contest made before him, and the superior court may reach an opposite conclusion on a con*417test made before it on an entirely different issue. Another difficulty about forcing such a construction of section 1545 is, that any number of contests might be instituted before the ordinary declares the result, and, pending one contest, another may file a petition before him, contesting the validity of the election on entirely different grounds; whereas the act with reference to the jurisdiction of the superior court manifestly provides for but one contest, which must be instituted by at least one tenth of the number of voters who voted at the election. It is worthy of note in this connection that the general law upon the subject of ballots guards with sacred vigilance the sanctity of the ballot-box, and never sanctions or authorizes any examination or tampering with ballots unless expressly authorized by statute. This contest necessarily involves an investigation into the ballot-box, an examination of ballots, and a recount of votes. The only provision in this act that authorizes such an investigation is that given in section 2546, to three justices of the peace, under an order granted by the judge of the superior court, requiring them to recount the ballots on a given day., and report the result to the next term of court, or to the term to which the petition for contest is made returnable. How, then, can it be implied from this act, or any other law upon the subject, that the ordinary has such a power, when it is specifically given to an entirely different tribunal ?
Our attention is called to the fact that the contest before the superior court relates to impeaching the fairness of the election, or the conduct of the ordinary. But the same power is granted to the superior court by the same section with reference not only to the conduct of the ordinary, but also with reference to the conduct of the managers of the election; and therefore there is no reason for inferring that the judge, in reviewing the conduct of the ordinary, is any more considering the act of a judicial officer, or a court, than he is when he reviews the conduct of the managers of the various precincts in the county. It is further insisted by Mr. Justice Little, in his opinion, that as the act requires a .recount of the ballots by three judicial officers of the county, it evidently implies that any count of the ballots which may have been made by the ordinary in his *418decision of the questions and contest made before him shall not be accepted as final, but that .the superior court, to determine the truth of the vote, may have the ballots recounted; and it is contended that as such a recount can not refer to a consolidation of the votes cast at the precincts, it must refer to a count of these votes that has been made by the ordinary under a contest. I think, on the contrary, that the recount there clearly has reference to the count that has been made of the votes by the managers of the various precincts; for whatever count of the ballots cast at any one or more of the precincts is made after the managers have acted is necessarily a recount of the vote cast at the precincts in question.
I can see nothing in the action taken by the General Assembly in reference to the passage of this act which is at all in conflict with the views herein expressed. Upon examining the journal referred to by Mr. Justice Little in his opinion, I discover that the act originated in the Senate. When it reached the House, a substitute was proposed by that branch of the legislature, which omitted the provision with reference to conferring jurisdiction on the superior court to hear and determine contests over the election: When this substitute was returned to the Senate, it seems that body insisted upon giving that court jurisdiction over such questions, and hence amended the bill from the House by embodying therein the provisions of section 1546 of the Political Code, and the act became a law in its present shape. I infer from this simply that the original purpose of the Plouse was to make the action of the ordinary in declaring the result of the election final, and not open to review by any court, just as has been decided by this court as to his powers in fence elections. The Senate, however, was not willing that such should be the status of law as to the liquor question, and therefore its amendment made all contests of the character presented to the ordinary in this case judicial in their nature, and specifically provided how such contests should be made, heard, and determined by the superior court. As before indicated, even without such special provision in the act in reference to the superior court, I think the powers conferred upon the ordinary were not at all judicial in their nature, and *419did not confer upon him jurisdiction to hear such a contest as was presented to him by the petition in this case. But this conclusion becomes more irresistible when we construe together the entire provisions of the act relating not only to the powers •conferred upon an officer who acts merely in a ministerial or political, and not a judicial capacity, but also to powers conferred upon a court by virtue of which specific provisions are made for the hearing and determination of a judicial question. I recognize, therefore, the doctrine that “every part of a statute must be viewed in connection with the whole, so as to make its parts harmonize, if practicable, and give a sensible and intelligent effect to each; ” but the only way of which I can conceive to harmonize the provisions of this law, and give an intelligent effect to the same,, is to give the act the construction herein indicated. For the above reasons, I feel constrained to •dissent from the decision of the majority of my brethren.
Fish, J. I concur in the dissenting opinion of Mr. Justice Lewis.