Opinion
50120, 50121.
SUBMITTED JANUARY 7, 1975.
DECIDED JANUARY 28, 1975. REHEARING DENIED FEBRUARY 17, 1975.
Election contest. Fulton Superior Court. Before Judge Temples from Conasauga Circuit.
Hugh W. Gibert, Richard G. Garrett, for Carroll.
Stuart E. Eizenstat, George N. Ackerman, for Abernathy.
Charles L. Weltner, John Tye Ferguson, Leroy Johnson, Harold Sheats, Dorothy Y. Kirkley, Assistant Attorney General, for appellees.
In actions brought to contest a primary election where no attack was made on the general election, the questions raised on appeal were mooted by the fact that the general election had taken place.
SUBMITTED JANUARY 7, 1975 — DECIDED JANUARY 28, 1975 — REHEARING DENIED FEBRUARY 17, 1975 — CERT. APPLIED FOR.
These cases are election contests which concern two seats on the Fulton County Board of Commissioners. The pertinent facts were stipulated by the parties.
By the Acts approved on March 29, 1973 and March 5, 1974, respectively, the membership of the Fulton County Board of Commissioners was increased from three to seven members; the nomination and election was to be by majority vote; three of the seven posts would be elected on a county at large basis and the remainder on a geographical district basis; and this change in the election plan was to be effective for the 1974 elections. Ga. L. 1973, p. 2462; Ga. L. 1974, p. 2128. The Voting Rights Act of 1965, 42 U.S.C. § 1973 (c) requires that when a state changes its elections laws the change cannot be enforced until (1) it has been submitted to the Attorney General of the United States and the latter has not interposed an objection within sixty days of the submission or (2) it has been approved by the United States District Court for the District of Columbia in a declaratory judgment action. This Act was submitted to the Attorney General of the United States who interposed an objection only as it related to the election of the three at-large posts on a majority vote basis on the ground that this portion of the plan would "have a racially discriminating effect." Thereafter, the Fulton County Board of Elections adopted a resolution providing that the nomination and election for the three county-wide seats be by plurality rather than by a majority. Litigation was commenced in the United States District Court for the Northern District of Georgia attacking this action of the Board of Elections. Pitts v. Carter, C74-1060A. Some of the defendants here were parties to that case but none of the plaintiffs. A three-judge court was convened in Pitts v. Carter and held that the Acts of 1973 and 1974 had not been approved by the Justice Department and enjoined the enforcement of the Acts and the Board of Elections' plan. The case was then remanded by the three-judge court to a single judge (who also sat on the three-judge court) with directions to develop an interim procedure. The district judge complied and ordered that for the 1974 election only for the three at-large posts involved, the election would be by a plurality vote. This judgment of the United States District Court is now on appeal before the United States Court of Appeals for the Fifth Circuit and no federal court intervened further. The August 1974 Democratic primary was conducted in compliance with the district court order and the defendants Cates and Brown were declared the nominees after receiving only a plurality in the contests they had entered. Immediately following the August primary, the complaints in these cases were filed by plaintiffs, two of which were the runners-up to defendants Brown and Cates in the August primary. The gist of the complaints are that the primary was held contrary to Georgia law which requires that election be by majority vote. The superior court, after a hearing, dismissed the complaints. In its orders of dismissal the trial court declared that the only ground for an election contest applicable to this case was that contained in Code Ann. § 34-1703 (d) which provides contest for "any error in counting the votes or declaring the results of the primary or election, if such error would change the results." The trial court held that there was no error by election officials in counting the votes or in declaring the results of the primary and defendants Brown and Cates were the winners of the primary and the duly nominated candidates of the Democratic Party for the respective posts for which they were candidates. The trial court also found that it had no jurisdiction to determine whether the United States District Court had made an error of law in ordering the election to be held on a plurality basis rather than a majority vote. These orders were entered in September 1974. It is these orders of the superior court that are here appealed.
1. Motions to dismiss the appeals have been filed on the ground of mootness. The motions and attached certificates of the supervisor of elections state that on November 5, 1974 the general election was held for the offices in issue and two candidates, the defendants Brown and Cates, each received a majority vote and were certified as the successful candidates. No opposition to these certificates or to these motions for dismissal has been filed. "Statements of fact in a motion to dismiss a case as moot, which are not directly denied by the opposite party, will be taken as true in passing on the motion." Major v. City of Atlanta, 198 Ga. 303 (2) ( 31 S.E.2d 727).
In their respective complaints, plaintiffs contest the results of the primary election and seek the voiding of the August primary under Code Ann. § 34-1708 (d). While plaintiff sought other relief by way of injunction and mandamus, it is clear that the parties abandoned them at the time of trial and judgment. The only enumeration attacks the judgment of the trial court when it refused to invalidate the primary election. All arguments are limited to this question. The test of a case on appeal is not what it might have been at any given time during its pendency, but what remained in it and what is brought here for review. Douglas-Guardian c. Corp. v. Todd, 212 Ga. 791 ( 96 S.E.2d 275). In this case the only issues submitted and considered by the trial court and appealed concern only the primary election. By the contest provision of the Code under which this action was brought, the superior court did not have jurisdiction over any matter involving the general election but only had jurisdiction over issues pertaining to the primary. Code Ann. Ch. 34-17. See Smiley v. Gaskin, 115 Ga. App. 547 ( 154 S.E.2d 740). Thus, under the action as brought the superior court could not have entered any valid order pertaining to the general election for it had no jurisdiction. Nor did it attempt to do so. The only matters passed on by the trial judge pertained to the primary. Obviously, these were the only matters appealed. It follows that we of the appellate court are also limited to the primary for the orders appealed apply only to the primary. Thus, if we were to reverse the judgments here the plaintiffs would derive no practical benefit as the very thing they seek to prevent is the election to office of the defendants Brown and Cates, which has already occurred. Since we have no jurisdiction in this case over the general election, a judgment of this court would be meaningless, improper, and would not invalidate the general election. While plaintiffs had remedies which they could have sought even though the general election was to be held in the future, they did not do so. Accordingly, the cases raise moot questions and must be dismissed. Code Ann. §§ 6-701 (b) and 6-809 (b 3).
2. We additionally note that plaintiffs in Case No. 50121 made allegations and prayers for what they term declaratory relief. Since the basic issues raised are moot, answering any would be dictum and in the nature of an advisory opinion. The Declaratory Judgment Act makes no provision for a judgment which is merely advisory. Henderson v. Alverson, 217 Ga. 541 ( 123 S.E.2d 721).
Appeals dismissed. Webb and Marshall, JJ., concur.