Dorsey v. Ansley , 72 Ga. 460 ( 1884 )

Blandford, Justice.

The plaintiffs in error filed their petition, aclring for leave to exhibit an information in the nature of a quo warranto against the defendants in error, who were exercising the functions and offices of councilmen of the town of Taylorsville, in which they alleged that respondents had been elected such councilmen on the seventh day of January, 1884, which election was illegal, as théy alleged, because by the charter of said town, the election should have been held on the first Thursday in January, 1884, which was the third day of that month ; and that they were elected at an election held, after due advertisement, on the-14th day of January, 1884.

At tho hearing of this petition, it was shown that the election, held on the 7th day of January, was by order of the then board of councilmen, and the same was advertised for ten days; that four of this board and ono other person, who are the relators, were candidates for election to the office of councilmen, and were voted for; that respondents were also candidates and were elected. This election was full—nearly all, if not all, the legal voters participating therein. Two days after this election, the old board of councilmen, four of whom had been candidates for re-election and defeated, ordered another election to take place on the 14th of January, five days’notice being given of this election. At this last election, the relators were elected, only seven persons voting at this election. Under these facts, the presiding judge refused the application, and dismissed the same. This ruling of the court is excepted to, and error is assigned here on said exception.

We think the judge was right,-under the facts of this case, to refuse the information. While the law required the election to bo held on the first Thursday in January, yet when the council, under a mistake of the law, directed an election to bo held on the 7th of January, four days later than that fixed in the charter, but this election was held under ample notice, fairly, in which the voters of the town participated, no objection being made by any one, and the relators themselves being candidates, four of whom ordered the election, public policy requires that they should be estopped from contesting this election.

While the public are interested in the question as to who should exercise a public office, these relators, who claim these offices, are by their oiyn acts estopped from denying the legality of the election of respondents; and in oil cases where an application is made for leave to file an information in the nature of a quo warranto, the presiding judge may look to the relation which the parties applying sustain to the matter to be inquired into, and if the facts show that the applicants have been guilty of such conduct on their part as precludes them from making the inquiry, they will be estopped and their application denied. Code, §782 et seq.; 63 Ga., 592, 207 : 44 Ga., 497 ; High, 629 ; 33 N. J. L., 195 ; 88 Ill., 537 ; Dillon Munic. Cor., Sec. 899, 900 ; 3 Tenn. R., 573 ; 4 Id., 223 ; 1 East, 38 ; 1 Barn & Adolph., 684, 690.

Let the judgment of the court below be affirmed.