Opinion
13420.
SEPTEMBER 24, 1940. REHEARING DENIED OCTOBER 15, 1940.
Petition for injunction. Before Judge Gardner. Mitchell superior court. April 27, 1940.
Edward T. Hughes, for plaintiff.
Robert Culpepper Jr., E. M. Davis, and F. S. Twitty, for defendants.
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 ( 103 S.E. 843).
No. 13420. SEPTEMBER 24, 1940. REHEARING DENIED OCTOBER 15, 1940.
A primary election was held in Mitchell County for nomination of county officers. One of the candidates for the office of commissioner of roads and revenues was W. W. Bullard. Being defeated in that election, he filed his petition seeking to have the election declared null and void and of no force and effect, in that the statutory law governing elections was totally and completely ignored, to wit, what is known as the Australian-ballot system of voting. Named as defendants were R. E. L. Culpepper, ordinary of Mitchell County, J. W. Butler, county commissioner, and J. L. Palmer and others as officers and members of the Democratic Executive Committee of Mitchell County. In his petition, after having shown that the Australian-ballot system was in force in Mitchell County, he quoted Code sections 34-1902, 34-1905, 34-1908, and 34-1909, governing the holding of elections, the first two of said sections relating to the duty of the ordinary and of the election managers with respect to elections, and the two last named sections making provision for the furnishing to voters printed instruction cards, and making it unlawful for any person to attempt to influence or interfere with any voter while he is in the election booth in the act of preparing his ballot, etc. The petition was amended, and the allegations of the petition as amended were in substance as follows: That neither the ordinary nor any other person or official furnished and provided for each and every precinct in the county such booths, rooms, enclosures, etc., as required by the statute, and that the election officials completely failed to comply with the provisions of said law, and that the election was therefore invalid, null and void; that no booths whatever were furnished in stated precincts, and no instruction cards; that other violations of the statute were committed at other specified election precincts, all of which violations of law rendered the election null and void. It was alleged that such total disregard for the election laws and such widespread failure to comply therewith caused the grand jury of the county to make a recommendation condemning the same.
Culpepper and Butler each filed a special demurrer to the petition as amended, and by special demurrer contended that he was not a proper defendant, for that there was no legal duty upon him to perform any of the commissions or omissions complained of, either as individuals or as officers, and that because of such misjoinder of parties defendant the petition should be dismissed. Their special demurrers were sustained and the petition dismissed as to each demurrant. There was no exception to this ruling. The case was brought to the Supreme Court by writ of error complaining of the order sustaining the general demurrer of J. L. Palmer, chairman, and the other members of the Executive Committee, whom the plaintiff sought to have "enjoined and restrained from naming any one as nominee as the result of said purported election."
Error is assigned on the order dismissing the petition on general demurrer. As it then stood, the case was one solely against Palmer and Crow, chairman and secretary, respectively, of the Democratic Executive Committee of Mitchell County, "and the Democratic Executive Committee of said county." The petition sets out in detail violations of the election law contained in the Code, §§ 34-1902, 34-2002, and a complete disregard of the same in so far as a primary election held in Mitchell County of February 21 was concerned. The applicable statute, found in the Code as just indicated, imposes no legal duty on the committee calling the primary election, nor any officer or member thereof. This court has often declared that elections belong to the political branch of the government, and that courts of equity will not interfere to protect a purely political right. See Avery v. Hale, 167 Ga. 252 ( 145 S.E. 76), and the authorities there cited and reviewed. The plaintiff relies on Moon v. Seymour, 182 Ga. 702 ( 186 S.E. 744), and particularly the language in the first headnote to the effect that the law declared in the Code, § 34-1902, is mandatory, and that a complete disregard of that statute by the county authorities renders void and illegal an election. That decision, however, did not deal with a purely political right, but the case was made by equitable petition seeking to declare void an election at which the question of the imposition of a tax was submitted to the voters. The distinction between that case and the one at bar is obvious. There are two rules, one of which is applicable when only a purely political right is involved; the other, where one's property or person is imperiled. This was pointed out in Ogburn v. Elmore, 121 Ga. 72 ( 48 S.E. 702), as follows: "Elections by the people, either for the choice of public officers, or for the determination of other matters submitted to the popular vote, being the exercise of the political power, the general rule is that a court of equity will not interfere in any matter concerning the same. However, if under the guise of an election which is really unauthorized by law, the property or person of the citizen is imperiled, equity will interfere." This difference was also recognized in Coleman v. Board of Education, 131 Ga. 643 ( 63 S.E. 41) (5). The judge did not err in dismissing the petition.
Judgment affirmed. All the Justices concur.