Opinion
19482.
ARGUED SEPTEMBER 11, 1956.
DECIDED OCTOBER 10, 1956.
Equitable petition. Before Judge Roddenberry. Ware Superior Court. July 24, 1956.
Ben T. Willoughby, Leon A. Wilson II, for plaintiff in error.
Arthur B. Lott, Jr., Memory, Barnes Memory, contra.
1. "Elections belong to the political branch of the government, and courts of equity will not interfere to protect a purely political right."
2. The petition, which sought to have a court of equity declare a primary election invalid, and to enjoin the Democratic Executive Committee from declaring the successful candidates the nominees of the party, failed to state a cause of action, and the trial court did not err in sustaining the general demurrers thereto.
ARGUED SEPTEMBER 11, 1956 — DECIDED OCTOBER 10, 1956.
J. A. Altman, the present Sheriff of Ware County, Georgia, brought his equitable petition on July 6, 1956, against the members of the Ware County Democratic Executive Committee, in which petition as amended he alleges that he was a candidate for Sheriff of Ware County in a Democratic run-off primary held on November 2, 1955, and by which petition he seeks to enjoin the Committee from declaring and recognizing the successful candidates in the primary, and from declaring and recognizing his opponent Robert Lee as the successful nominee for sheriff, and he prays that the primary be declared null and void; it being alleged that the election was illegally held and conducted, and is therefore void, in that the ballots to be used by the absentee voters were delivered by the defendant executive committee to the registrars of the county instead of being delivered to the registrars by the ordinary; that these ballots did not have printed thereon the words "Absent Voter's Ballot"; that the defendants did not require that the registrars perform all of the acts and duties prescribed by Chapter 34-33 of the Code in the issuance, receipt, handling, and delivery of the absentee ballots, which rendered them illegal; and that they should not have been counted in ascertaining the result of the primary; but the petition does not allege that any of these ballots were not cast by regularly qualified voters, or that there was any tampering with them, although opportunity was afforded for such by the manner in which they were handled; that the election was fraudulently conducted, in that "false ballots" were carried by unauthorized persons to three of the voting wards and counted by the managers, the exact number of which were unknown to the petitioner, but that they numbered in excess of 120 at each of the wards; and that petitioner's opponent received in excess of 100 votes from said "false" absentee ballots at each of the wards; and that, had they been eliminated, petitioner would have been declared the nominee, but the petition fails to allege how or in what way these ballots were "false." The petition further alleges that petitioner's opponent hired and employed "hoodlums and gangsters," who were imported from without the State and who were unknown to the petitioner, for the purpose of terrorizing and intimidating the Negroes who planned to and tried to vote for the petitioner; that, because of the "threats and intimidation" by these "hoodlums and gangsters" (without any allegation as to the nature and character of such "threats and intimidation"), 460 named Negroes who would have voted for petitioner were prevented from doing so, and frightened many Negroes into voting for his opponent when they had intended to vote for petitioner; that defendants failed to comply with the secret-vote laws, in that booths and other arrangements to insure a secret vote were not supplied as required by Code § 34-1902; that instruction cards were not supplied as required by Code § 34-1908 (which sections impose the duties there referred to upon the ordinary and the sheriff, and not upon the executive committee); and that the ballots did not contain a printed description and number on the reverse side thereof as required by Code § 34-1903; and that petitioner's opponent had failed to file a statement of his campaign expenses as required by Code § 34-2001. Petitioner's opponent, Robert Lee, was permitted by the trial court to intervene, and both he and the defendant executive committee filed similar demurrers to the petition, which the trial court sustained; and to this judgment petitioner excepts.
1. It has long been the general rule in this State as well as in many other jurisdictions (Caven v. Clark, 78 F. Supp. 295, 302), that "Elections belong to the political branch of the government, and courts of equity will not interfere to protect a purely political right." Printup v. Adkins, 150 Ga. 347 (1) ( 103 S.E. 843). See also to the same effect Ogburn v. Elmore, 121 Ga. 72 (1) ( 48 S.E. 702); Harris v. Sheffield, 128 Ga. 299, 303 ( 57 S.E. 305); Ivey v. City of Rome, 129 Ga. 286, 288 ( 58 S.E. 852); Avery v. Hale, 167 Ga. 252 (1) ( 145 S.E. 76); Kinman v. Monk, 179 Ga. 132, 135 ( 175 S.E. 458); Bullard v. Culpepper, 190 Ga. 848, 849 ( 11 S.E.2d 19); Bergman v. Dutton, 203 Ga. 672 ( 48 S.E.2d 101). Counsel for the plaintiff in error concede in their brief that such has been the rule in this State since 1884 and down through 1940, but it is further insisted that the decisions of this court in Whittle v. Whitley, 202 Ga. 633 ( 44 S.E.2d 241), and Barrentine v. Griner, 205 Ga. 830 ( 55 S.E.2d 536), overruled the above cases by implication, and did away with the old rule of distinction between political rights and personal and property rights, and thus authorized a court of equity to interfere with and control political elections. With this contention we cannot agree. Those cases simply recognize an exception to the general rule to the effect that, where there is the lack of authority to hold an election due to non-compliance with a mandatory prerequisite to the calling of an election, the election is void ab initio. As pointed out in the Barrentine case, supra (headnote 3a), "There is a marked distinction between mandatory provisions of the law in regard to the calling of an election and those which are merely directory to the officials in holding them." There are also other exceptions to the general rule, as pointed out in Bergman v. Dutton (supra), such as where the election is unauthorized by law, or authorized by an invalid or unconstitutional law or ordinance, or where property or person of the citizens is imperiled.
2. There is no allegation in the present petition that the property or person of the petitioner is imperiled, or that the holding of the primary election was unconstitutional, or that the Democratic Executive Committee of the county was not authorized and empowered to call and conduct said primary election, or that there was any failure to comply with any mandatory prerequisite to the calling of the primary election. Neither does the petition allege that the petitioner has made any demand for a recount of the ballots as provided for by Code (Ann. Supp.) § 34-3223 et seq. Applying the foregoing rulings to the petition, the trial judge did not err in sustaining the demurrers thereto.
Judgment affirmed. All the Justices concur, except Wyatt, P. J., not participating.