Opinion
20652.
ARGUED OCTOBER 13, 1959.
DECIDED NOVEMBER 4, 1959.
Injunction. Wheeler Superior Court. Before Judge Whaley. June 30, 1959.
Carl K. Nelson, Nelson Nelson, for plaintiff in error.
Harris, Chance McCracken, contra.
The constitutional amendment, duly ratified by the people, creating the election of the six members of the Board of Education of Wheeler County by militia districts therein, having provided by law for the time of said regular election, the notice of said election to be given by the ordinary is merely directory, and his failure to perform this duty does not invalidate the election thus held on that date.
ARGUED OCTOBER 13, 1959 — DECIDED NOVEMBER 4, 1959.
This is an equitable action to enjoin a county election to be held on the date set out in an amendment to the Georgia Constitution (Code, Ann., § 2-6801; Ga. L. 1955, pp. 711, 714), duly ratified in the general election of 1956, authorizing the election by militia districts of the six members of the Wheeler County Board of Education. The law as ratified required the ordinary of the county to publish the notice of the first election once a week for two weeks immediately preceding the date of the election on the first Tuesday in February, 1957, and the successors to such elected members, who were to be elected in the first election to staggered terms from one to six years, are to be elected at elections to be held on the first Tuesday in February in the year in which the members' terms expire.
The petitioner is alleged to be a citizen, taxpayer, and voter, interested in the enforcement of the laws and legal administration of the county, and a member of the Wheeler County Board of Education. He brought the action based on the fact that the ordinary failed to give the proper notice of an alleged election to be held on February 3, 1959 (first Tuesday) for the office which the petitioner holds, expiring on December 31, 1959, and is planning and threatening to hold such purported election without any notice whatsoever to the petitioner or the public, in utmost secrecy. He further alleges in his petition that, several days prior to the election, he learned of the secret election, sought to become a candidate to succeed himself, but was advised by the ordinary that he had failed to qualify — the entries of candidates having closed 15 days before, another candidate had qualified, and he would not accept petitioner as a candidate to succeed himself; that neither the petitioner, voters or citizens of said county have an adequate remedy at law to prevent the wrongs and illegal acts of the ordinary in holding the purported election; and that equity should intervene by enjoining the illegal and void election until the ordinary has issued a proper order calling said election and providing for the qualification of candidates together with the proper notice, etc., in strict compliance with the law pertaining to the holding of such an election. A temporary restraining order was granted — which was not obeyed and the election was held on the date set by law, and the petitioner amended his petition setting out the violation and utter disregard of the restraining order, and prayed that the purported election be adjudicated illegal, null, void, and of no legal force and effect. Demurrers, a motion to strike the last amendment, and renewed demurrers to the amended petition were duly filed by the defendants, and, after a hearing, the motion to strike the last amendment and the renewed general demurrer were sustained, and the petition was dismissed. The exceptions are to these judgments.
While we have held in Whittle v. Whitley, 202 Ga. 633 ( 44 S.E.2d 241), and Barrentine v. Griner, 205 Ga. 830 ( 55 S.E.2d 536), that, where there is a lack of authority to hold an election due to non-compliance with a mandatory prerequisite to the calling of an election, the election thus held is void ab initio, this ruling is an exception to the general rule that elections belong to the political branch of the government and equity will not interfere to protect a purely political right. See Altman v. Cooper, 212 Ga. 627 ( 94 S.E.2d 685), and cases cited therein. Thus we have for decision here whether or not the requirement of notice allegedly not given, was mandatory or directory only. Counsel for the plaintiff in error seeks to have the court declare the failure to give notice of the election — either as referred to in the constitutional amendment or in Code § 34-2604 — as a failure to perform a mandatory requirement, vitiating the election, and he relies in his brief on the Whittle and Barrentine cases, cited above, as well as on Davis v. Dougherty County, 116 Ga. 491 (2, 3) ( 42 S.E. 764), and Roberts v. Murphy, 144 Ga. 177 (1, 2) ( 86 S.E. 545). He states further that the holdings of the two former cases expressly overrule all cases holding to the contrary. The Altman case, cited above, completely refutes this, since this court therein pointed out that these cases did not overrule by implication the cases therein cited following the general rule, but that they were exceptions only. A brief reading of the cases relied upon by counsel discloses that they are all based on special elections in which the public has no other notice of the election except that required in order for the election to be held. But for the notice there could be no election, and the notice becomes indispensable to the holding of the election. Notice of the election here was given by the statute wherein the six county officers were created, and it contains notice of an election each year on the first Tuesday in February to elect the member whose term is expiring that year for a six-year term. Where the time and place for an election are fixed by law, the requirement of notice is directory only, but where they are not so fixed, and the duty of fixing them is committed to a municipal body or other officer vested with authority to call it, what the statute prescribes as to the giving of notice is mandatory. Irvin v. Gregory, 86 Ga. 605, 609 ( 13 S.E. 120). See also 18 Am. Jur. 245, § 106.
It follows from the above that it was error to enjoin the election to be held on the legal date set by law, and since the petition here as amended failed to set out any reasons why the election was void or an exception to the general rule, it was subject to general demurrer. Whether or not the notice of this election was the same as that set out for the first election in 1957 or that required for county officers in Code § 34-2604, such requirement of notice was directory only, and the court did not err in dismissing the petition, since the election was not void for any reason assigned.
Judgment affirmed. All the Justices concur.