Opinion
17289.
NOVEMBER 14, 1950.
REHEARING DENIED NOVEMBER 27, 1950.
Injunction. Before Judge Nichols. Chattooga Superior Court. August 18, 1950.
E. J. Clower and Bobby Lee Cook, for plaintiff in error.
Brinson Davis and C. H. Porter, contra.
Constitutional questions raised for the first time in this court will not be considered.
No. 17289. NOVEMBER 14, 1950. REHEARING DENIED NOVEMBER 27, 1950.
Claude Baker filed a petition in two counts (identical in substance except as herein stated) against W. M. Jackson and named persons, as comprising the Democratic Executive Committee of Chattooga County, and in substance alleged: On June 28, 1950, a Democratic primary election was held for the nomination of a Commissioner of Roads and Revenue in Road District Number Three of the county. The plaintiff received a total of 297 votes, the defendant, 225 votes, and G. A. Kling, 184 votes. Neither of the defeated candidates filed any demand for recount of the ballots, nor any contest of the election. On June 29, the executive committee consolidated the returns and announced the results. The committee failed and refused to name the plaintiff as nominee, but on the contrary, called and arranged for a second primary, to be held on July 12, 1950. The action of the committee was taken because of the provisions of an act of the General Assembly (Ga. L. 1945, p. 1087), which in substance provides that in all counties having a population of not less than 18,525, and not more than 18,540 inhabitants, by the 1940 census, nominees for all county offices must receive a majority of the votes cast in the primary, and the executive committee shall immediately call a second primary for those offices in which no candidate received a majority. A second primary election was held on July 12, 1950, and the plaintiff, Claude Baker, received 411 votes, and the defendant, W. M. Jackson, 401 votes. On July 13, the committee met and consolidated the returns and published the results. On July 14, W. M. Jackson filed a demand for a recount of the ballots, and on the same date filed a contest of the second primary election. The demand for a recount and the contest are still pending. The second primary election is null and void because the act of the General Assembly under which it was held is unconstitutional, for the following reasons:
"a. That by the terms of said act, the same is applicable in only one county in the State of Georgia, to wit: Chattooga County, the population of which by the United States census of 1940 was 18,532; further, that, inasmuch as said act does not contain the provision that counties having such a number of inhabitants 'according to any future census,' Chattooga County is the only county that said act can ever apply to.
"b. That said act is both local and special, but notwithstanding such fact, no notice of the intention to apply therefor was published in Chattooga County thirty days or more prior to the introduction of same into the General Assembly, in the manner then prescribed by law, all of which is in violation of article III, section VII, paragraph XVI of the Constitution of 1877.
"c. That said act violates article I, section IV, paragraph I of the Constitution of 1877, for the reason given in subparagraph 'a' above, and for the further reason that it can not, under its terms, have uniform operation throughout the State, but is limited in its application solely to the county of Chattooga.
"d. That said act further violates article I, section IV, paragraph I of the Constitution of 1877, for the reason that provision had been made for the holding of second primary elections by an existing general law, said general law being expressed in the provisions of section 34-3213 of the Code of Georgia."
In count one it is alleged that a controversy exists between the plaintiff and the defendants as to whether the plaintiff was lawfully nominated in the primary election of June 28, 1950. The plaintiff contends that he was duly nominated, and the defendants contend that he was not, and that the second primary, of July 12, was necessary. The prayers were that the act be declared unconstitutional, null and void; that the second primary election be declared a nullity; that the plaintiff be declared the nominee of the democratic primary; for process, and other relief.
In count two it is alleged that the plaintiff has no adequate remedy at law, and that he is being put to expense by reason of the recount petition and election contest. He prayed that the defendants be temporarily and permanently restrained and enjoined from proceeding with the recount petition and election contest; for process, and other relief.
The court granted a temporary restraining order. On the date set for the hearing, the defendant, W. M. Jackson, filed general demurrers to both counts of the petition, which were overruled, and the exception is to that judgment.
The Act entitled, "Second Primary Elections in Certain Counties" (Ga. L. 1945, p. 1087) is so limited and restricted that the act applies only to Chattooga County, and is a special act and not a general one. Worth County v. Crisp County, 139 Ga. 117 ( 76 S.E. 747); Stewart v. Anderson, 140 Ga. 31 ( 78 S.E. 457); Medders v. Stewart, 172 Ga. 507 ( 158 S.E. 56); Christian v. Moreland, 203 Ga. 20 ( 45 S.E.2d 201). The special act applicable only to Chattooga County is not in conflict with any general law applicable to primary elections for county officers. This is conceded by counsel for the defendant in error.
By brief, counsel for the defendant in error assert: "The sole question relied on by the defendant in error . . was: 'Is the act of 1945 a law of a general nature, which is unconstitutional because it does not have uniform application throughout the State, but is arbitrarily limited in application to counties having a population of not less than 18,525 and not more than 18,540 by the 1940 census?'"
The question stated by counsel is not made by any of the attacks upon the constitutionality of the act set out in the petition. Counsel for the defendant in error quote from subsection "c" of the petition, set out in the statement of facts, to support the contention that the question was made as to whether the act of 1945 is a law of general nature and unconstitutional because it does not have uniform application throughout the State. There was no allegation in the petition (in subsection "c" or elsewhere) that the act of 1945 (Ga. L. 1945, p. 1087) is one of general nature. The attack made by subsection "c" is that the act is limited in its scope and applicable solely to Chattooga County.
A question not made in the pleadings, but presented for the first time in argument before this court, comes too late, and presents no question for determination. Loftin v. Southern Security Co., 162 Ga. 731 (3) ( 134 S.E. 760); Rogers v. Taintor, 199 Ga. 192 ( 33 S.E.2d 708).
Every attack made by the petition upon the act having been abandoned by the defendant in error, it is unnecessary to pass upon the questions which have been thus abandoned. The act can not be held to be unconstitutional upon an attack presented for the first time by argument of counsel in this court.
Judgment reversed. All the Justices concur.