Where a statute provides a special form of remedy for a specific type of case, that statutory remedy must be followed, and remedies of that description do not come within the provisions of the Declaratory Judgment Law.
DECIDED FEBRUARY 17, 1949. REHEARING DENIED MARCH 31, 1949. On August 13, 1948, the plaintiffs, R. R. Holtzendorf, C. Arthur Nail, John Harrison, and Alfred Noble, filed their joint petition in the Superior Court of Glynn County, seeking a declaratory judgment to invalidate a "no-fence" election, held on July 7, 1948, as illegal, void, and of no effect at the time of the filing of the petition, and further to declare that the result of the election, establishing a "no-fence" law, would not, as provided by the terms of the no-fence law, become effective at the expiration of six months from the time of the election. The defendants named in the petition are Glynn County, a political subdivision of the State, Edwin W. Dart, Ordinary of Glynn County, the Brunswick Junior Chamber of Commerce, an unincorporated association of members in Glynn County, with James Gilbert as president. Briefly summarized, the plaintiffs' petition alleged: The Brunswick Junior Chamber of Commerce sponsored the calling of the election and secured and filed the necessary petitions for calling the election. Edwin W. Dart is Ordinary of Glynn County, and is charged with calling and holding the election under the law and certifying the results; but during the ordinary's absence, *Page 45 Honorable W. C. Little, Judge of the City Court of Brunswick, acted in the ordinary's behalf, which action is alleged to be illegal and contrary to law. The election was illegal in that the ballot was confusing to the voters by requiring that the voter place an "X" or check mark after his choice as between fence and no fence, instead of requiring, as is customary that the voter strike out that for which he does not wish to vote; and this caused a sufficient number of voters to have changed the outcome of the election to vote against their wishes. The petition also alleged that the election was illegal by reason of the ordinary's failure to observe the provisions of the Australian Ballot Law, Code § 34-1901 et seq. The plaintiffs alleged that they, as well as a great many other citizens of Glynn County, own stock and do not find it feasible to attempt to comply with the no-fence law; that it would result in a great many of the citizens of the county disposing of their stock and going out of business at a serious sacrifice; and that the law will result in instances of damage and loss of property and many legal conflicts due to the apparent invalidity of the election.
The defendants filed their separate general and special demurrers, and the court sustained the general demurrer of each of the defendants and dismissed the petition as to each of them. The plaintiffs excepted to this judgment and appealed the case to the Supreme Court, which ordered the case transferred to the Court of Appeals for adjudication. Prior to the enactment of the Declaratory Judgment Law (Code, Ann. Supp., § 110-1101 et seq., Ga. L. 1945, pp. 137-139), it was well established that an election under the stock law (Code, § 62-501), upon the question of fence or no-fence, and the ordinary's supervision of the election, are in the exercise of political and police powers incident to legislative and executive government, and are 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. 72 (48 S.E. 702); Heath v. Bellamy,15 Ga. App. 89 (82 S.E. 665). And this was true whether at law (Heath v. Bellamy, supra; Reeves *Page 46 v. Gay, 92 Ga. 309 (18 S.E. 61), or in equity (Clark v.Board of Education of Laurens County, 162 Ga. 439 (134 S.E. 74); Skrine v. Jackson, 73 Ga. 377; Caldwell v.Barrett, 73 Ga. 604; Board of Education of Burke County v.Hudson, 164 Ga. 401 (138 S.E. 792); Church v. Purcell,186 Ga. 95, 96 (196 S.E. 806); Davis v. Haddock, 191 Ga. 639 (13 S.E.2d 657); Plainfield Consolidated School District v. Cook, 173 Ga. 447 (160 S.E. 617); Tharpe v. Hardison,69 Ga. 280, 283; Freeman v. McDonald, 72 Ga. 812; Irvin v. Gregory, 86 Ga. 605, 611 (13 S.E. 120); Chamlee v.Davis, 115 Ga. 266, 267 (41 S.E. 691); Nelms v. Pinson,92 Ga. 441 (17 S.E. 350). All questions arising out of the election must be determined by the tribunal constituted by the General Assembly for that purpose (Ivey v. Rome, 129 Ga. 286,58 S.E. 852); and the provisions of the stock law for holding elections designate the ordinary as the tribunal for the purpose, where it is stated: "The returns of said election shall be made to the ordinary, who, after examining the same and deciding uponall questions which may arise out of said election, shall proclaim the result by notice as aforesaid." (Emphasis supplied.)
The enactment of the Declaratory Judgment Law did not, we think, oust the ordinary's jurisdiction to decide "upon all questions which may arise out of said election," in the absence, of course, of the presentation of a constitutional question.Scoville v. Calhoun, supra; Clayton v. Calhoun, 76 Ga. 270. The General Assembly, in its wisdom, has seen fit to confer upon the ordinary a part of the political power of the State, and no provision was made for review by the judiciary. The decision of the ordinary is final in declaring the results of the election, and it would be an assumption of power on the part of the judiciary to intervene in this case in the absence of statutory authority to do so. No such authority has been pointed out to us nor has our research disclosed any. The enactment of the Declaratory Judgment Law does not, we think, confer such authority. The ordinary, for the purpose of stock elections, is constituted a special statutory tribunal from whose decision there is no review and no appeal save that of another election as provided by statute. Seymour v. Almond, 75 Ga. 112;Skrine v. Jackson, supra. The declaratory action was not designed to interfere with the jurisdiction of such special courts, and "`where . . a *Page 47 statute provides a special form of remedy for a specific type of case, that statutory remedy must be followed.' " Felton v.Chandler, 75 Ga. App. 354 (9) (43 S.E.2d 742). To illustrate by one query the position taken by this court, that the declaratory judgment was not intended to usurp the jurisdiction of specially constituted statutory tribunals, where the statute provides a special form of remedy for a specific type of case, could it be said that an injured employee, coming within the provisions of the Workmen's Compensation Law, may by-pass the Workmen's Compensation Board and have his claim adjudicated under the Declaratory Judgment Law by a court other than the board? To ask is to answer the question.
The fact that the Judge of the City Court of Brunswick acted in behalf of the ordinary during his absence in no way alters the situation. Code § 24-1710 provides: "Whenever an ordinary is disqualified or from sickness or other causes is incapacitated to act in any cause, the county judge or city court judge, and, if there be no such courts, then the clerk of the superior court of such ordinary's county may exercise all the jurisdiction of ordinary in such case."
We think, therefore, that the petition as brought in the instant case does not come within the provisions of the Declaratory Judgment Act, and the court did not err in sustaining the several demurrers thereto or in dismissing the petition.
Judgment affirmed. Gardner and Townsend, JJ., concur.