Opinion
41209.
ARGUED APRIL 6, 1965.
DECIDED APRIL 23, 1965. REHEARING DENIED MAY 18, 1965.
Contested election. Baker Superior Court. Before Judge Rees, Emeritus.
Frank C. Vann, for plaintiffs in error.
Twitty Twitty, Frank S. Twitty, contra.
1. Allegations of grave irregularities in the holding of an election, some of which amount to allegations of fraud, are sufficient to withstand a general demurrer.
2. It is not required that the detailed evidentiary facts be pleaded in a petition; the ultimate facts to be established by proof are sufficient.
ARGUED APRIL 6, 1965 — DECIDED APRIL 23, 1965 — REHEARING DENIED MAY 18, 1965.
In the general election of November, 1964, L. Warren Johnson was the nominee of the Democratic Party for the office of Sheriff of Baker County. The name of no other candidate appeared on the ballot. However, a write-in campaign was conducted on behalf of George Bush. When the results of the election were announced it appeared that Johnson had received the greater number of votes. On November 7, and within the time provided by the Election Code, Bush and seven other electors of Baker County filed in the superior court a contest of the election on the ground, inter alia, that illegal votes were cast in the election, which, if eliminated would change the result or cast it in doubt. Among the irregularities charged in the petition, as amended, were that named persons who were not bona fide residents of the county and who were not bona fide electors of the county were permitted to vote in the election as follows: 110 in the Newton precinct, 8 in the Elmodel precinct, 14 in the Milford precinct, 4 in the Hoggards Mill precinct and 28 in the Anna precinct; that absentee ballots of 89 named persons which had neither been properly requested, prepared nor received in proper form had been counted, — a total of 253 ballots alleged to have been illegally cast and counted. It was alleged that the ballot boxes were not kept locked and sealed during the election and that, at the close of the election, they were not locked and sealed and immediately delivered to the superintendent of elections, as required by law. Authenticated lists of electors for the precincts were not delivered to the poll holders. According to the lists of those voting kept by the poll holders in some of the precincts a greater number of ballots were found in the boxes than the number of people who had voted, and in others a lesser number of ballots than the number of people listed as having voted.
A recount of the votes was sought, and it was prayed that upon a recount George Bush be declared the elected sheriff, or that the election be declared null and void and another election called. It was also prayed that Johnson be enjoined from taking the oath and qualifying as sheriff.
On behalf of the respondent, Johnson, numerous general and special demurrers were filed to the petition, as amended. When Hon. George R. Lilly, the senior judge of adjoining circuits, could not serve, the Governor designated Hon. Cleveland Rees, a judge emeritus, to hear the contest. On a designated date the parties and counsel met for a hearing before Judge Rees, and at that time it was agreed by all that a recount of the votes would be made. That was done, and the result indicated that Johnson had received 812 votes and Bush 657 votes. Whereupon, Judge Rees then sustained the general demurrers and certain of the special demurrers to the petition, dismissed it, and declared Johnson to be the legally elected sheriff. There was no hearing on the allegations of illegal voting and irregularities in the holding of the election and no evidence was heard in support of or in opposition to those allegations.
To the judgment sustaining the demurrers and dismissing the petition the contestants except.
Upon careful consideration of the motion to dismiss the bill of exceptions we find it to be without merit and it is denied.
We think the court erroneously sustained the demurrers. The charges of illegal voting were of such gravity as to cast doubt upon the result of the election. Charges that more ballots were found in the box at precincts than the number of persons listed by the holders of the election as having voted, or the converse that less ballots were found in one box than the number of people who had voted in that precinct, amount to serious charges of fraud in the holding of the election. It is this sort of thing, inter alia, that the Election Code of 1964 seeks to prevent. The charges are as definite and full as can be expected in this situation and are sufficient to raise the question as to whether the election has been conducted in a manner so illegally, fraudulently and unfairly as to fall under condemnation of the law. The petition was good against demurrer, and the court should have proceeded to hear evidence to determine whether the charges could be sustained.
The fact that the contestant asked for a recount of the ballots and that a recount was held, still indicating that his opponent had received a greater number of the votes, does not waive or foreclose his contest of the election on the grounds of fraud, illegality and unfairness. Nor does the recital in the court's order declaring the result of the recount to the effect that the ballots had been "carefully checked and examined by the parties, their counsel and the court," alter the situation. That is exactly what should take place in the course of a recount. But a recount is no more than a physical examining of the ballot to see whether it was properly marked, eliminating any that may not have been, and making a count of them. It makes no determination as to whether any of the ballots may have been illegally cast by persons who were not entitled to vote, or for other reasons. It makes no determination of whether there may have been ballots in the boxes that were not in fact cast by those who voted in the election, or whether ballots which were cast may have been removed from boxes.
An election should not be permitted to stand, the results of which were obtained by illegal or fraudulent voting, or by adding to or subtracting from the ballots cast by the voters. Whether the contestant can sustain his charges of this nature remains to be seen, but since the charges were made in a manner contemplated by law the court should have ascertained the facts by hearing evidence.
Honest and fair elections must be held in the selection of the officers for the government of this republic, at all levels, or it will surely fall. If we place our stamp of approval upon an election held in the manner this one is alleged to have been held, it is only a matter of a short time until unscrupulous men, taking advantage of the situation, will steal the offices from the people and set up an intolerable, vicious, corrupt dictatorship. The Election Code and the remedies provided under it may be the most effective if not the only barrier to that sort of thing. Certainly it is a remedy, and the benefit of it ought not to have been denied.
The special demurrers, 6, 6 (A) (1), 6 (B), 6 (C), 6(D) (1), (A-P), (2) (3), (4), (5), (6), (7), 6(E), were improperly sustained. These demurrers were addressed to allegations of the petition concerning serious and gross irregularities in the conduct of the election. Some of them, standing alone, would not affect the outcome of the election and would not, of themselves, constitute enough to justify a voiding of it. But the cumulative effect of these and of other charges in the petition, if sustained by the evidence, is certainly enough to case the election in doubt and the consequent voiding of it.
The allegations to which the demurrers were directed are sufficient to put the defendant on notice of what is claimed to have occurred during the election. Code Ann. § 34-1705 (d). It is unnecessary for a contestant to plead the details of his evidence. "Good pleading requires only that the plaintiff plainly and concisely state the material ultimate facts upon which [he] depends for a recovery. As a general rule, the evidentiary facts upon which the plaintiff relies to prove the ultimate facts need not and should not be set forth in the pleadings." Lefkoff v. Sicro, 189 Ga. 554 (10) ( 6 S.E.2d 687, 133 ALR 738).
The recent case of Broome v. Martin, 111 Ga. App. 51 ( 140 S.E.2d 500) does not require a different result. No fraud of any kind was charged in that election. It was one in which more than 55,000 votes were cast with an apparent difference of only five votes between the two candidates when the results were announced. The contest was based upon some small irregularities which, involving no fraud of any kind, did not and could not change the result. The judge hearing the contest found that they neither affected the result nor cast it in doubt. We agreed. But in that case the court did not dismiss the charges on demurrer, as here; it heard evidence to determine whether anything may have happened in the holding of the election that would cast doubt upon the result, or upon the fairness of it. That is what should have happened here.
If the contestant can sustain his charges, or sufficient of them to cast doubt upon whether the election was fairly and lawfully conducted, it should be voided and another held. If he cannot, the election should stand.
Judgment reversed. Nichols, P. J., concurs. Pannell, J., concurs specially.
I concur in the judgment of reversal but cannot concur in all the reasons given therefor in the opinion. The petition alleges irregularities which, if supported by evidence, are of sufficient magnitude to authorize a finding that they placed in doubt the results of the election. For this reason, it is my opinion that the general demurrer to the petition was erroneously sustained. I cannot concur in the holding that fraud is alleged in the petition. Section 34-1705, subparagraph (d) of the Georgia Election Code (Ga. L. 1964, Ex. Sess., pp. 26, 179) provides that, "A statement of the grounds of contest shall not be rejected, nor the proceedings dismissed by any court, for want of form, if the grounds of contest are alleged with such certainty as will advise the defendant of the particular proceeding or cause for which the primary or election is contested." In view of this Code section, it is my opinion that the special demurrers were erroneously sustained, although this ruling might have been otherwise in the absence of this Code provision.