Scoville v. Calhoun , 1 Ga. L. Rep. 309 ( 1886 )

Jackson, Chief Justice.

Scoville and Beermann petitioned the superior court for the writ of mandamus against Wm. Lowndes Calhoun, ordinary, commanding him to receive and hear a certain contest made and offered to be filed with him touching the election under the local option act of the last legislature1 in respect to the sale of spirituous and other liquors. The mandamus was refused, and error is assigned thereon.

By section IY of the act in question, it is made the duty of the ordinary to “ consolidate the returns and decide all questions and contests arising under elections held by virtue of this act.”' In case the ordinary fails to do so, or acts unfairly in any respect, then the statute provides the remedy in the same section as follows: “ Within twenty days from the day on which the ordinary declares the result, one-tenth of the number of voters having voted at such election may petition the superior court, setting out plainly and distinctly the cause of contest, when, if the cause set out is such as impeaches the fairness of the election or the' conduct of the ordinary, the judge shall grant an order, directed to three justices of the peace of the county, requiring them to re-count the ballots on a given day, and report the result to the nest term of the superior court of that county or the term of the court to which the petition may be returnable, at which term the case shall be heard; provided, ten days’ notice has been given'to the ordinary of the filing of the petition, but such petition shall not act as a supersedeas of the result as declared by the ordinary, nor shall the judge grant a supersedeas, and the contest so instituted shall not be continued by the superior court, but must be tried and determined at the term to which the same is returnable; provided, such term is held, and if the same is not held, then at the next regular term of the court; and in the event that any one or more of the plaintiffs or defendants to such contests shall die pending the contest, it shall not be necessary to make parties in place of such deceased party or parties, plaintiff or defendant. Either party may subpoena witnesses to prove either fraud in the ballots, the counting thereof, or in the conduct of the ordinary, or of the managers of the election, and introduce evidence to establish either proposition or the converse thereof. The judgment of the superior court shall be final, unless the case is carried to the Supreme Court for review. If the election shall appear to have been fraudulently conducted, or the Votes fraudulently counted, the judge shall have power to declare the result and overrule the action of the ordinary in the premises.”

This court held, in respect to local option laws concerning fence or no fence, and special local option laws touching spirituous liquors in particular counties, that these were police and political matters with which the courts had no jurisdiction to interfere, unless conferred by those acts; but that the action of the ordinary concluded everybody, and that such was the intention of the general assembly in those enactments. In the face of these adjudications of this court, and in full view of their effect as law in the construction of local option laws touching fences and the sale of spirits, the general assembly passed this general local option law, and provided therein the only mode by which the courts could control the action of the ordinary in respect to these elections. No writ of mandamus^ or injunction, or prohibition js allowed by the act, or hinted at therein. No number of men less than one-tenth of the voters is allowed to institute a contest before the courts, and they cannot do so until after the result is declared and within twenty days thereafter. No supersedeas is to be granted, but the decision of the ordinary on every point is to stand uiitil one-tenth of the voters succeed in showing to the superior court illegality in the election, and that court reverses the ordinary, and, with the sanction of this court, declares a different result. To interfere, at the prayer of one man or a few men, with the ordinary’s conduct in counting and declaring the vote, either by mandamus or injunction, is a power that is not given by the ■statute, and that does not exist, because it is not there given, the election and the supervision thereof by the ordinary being the exercise of political and police powers incidental to legislative and executive government, and not, in its general political and police effect, at all or in any sense judicial, unless where the act itself confers the judicial jurisdiction.

When the law operates upon the private property of an individual, and that is seized or destroyed or confiscated, or the individual is arrested and indicted .thereunder for its violation, then that portion of the law thus affecting his private property and personal liberty may be assailed by him as unconstitutional or illegal; and if any part or all be in such case found to be illegal and unconstitutional, it will be the duty of the courts to protect his rights against such enactments, and make such an adjudication as will maintain the integrity of the law as a whole, if possible, and at the same time protect the citizen in all his constitutional and legal rights against the unconstitutional and' illegal portion of the law, if there be such.

The courts will never blot out of existence a great police and moral enactment on the ground that parts of it are attacked as unconstitutional, in a general onslaught upon it all. On the contrary, they will preserve it all, if possible, giving the benefit of doubts to the co-ordinate branches of government, even when a legitimate case of individual suffering in person or property is brought before them; and will never decide laws unconstitutional, if cases can be otherwise adjudicated. They will always wait until the law is attempted to be put in operation, and then act against the officer who executes or attempts to execute it, and not against the law-making branch of government in the general scope of its power. Cooley’s Con. Lim., 5 ed., pp. 196, 197; Armstrong vs. Jones, 34 Ga., 309; Exparte Randolph, 2 Brook. R., 447, and cases cited; Acts of 1885, p. 121; Skrine et al. vs. Jackson et al., 73 Ga., 377; Caldwell et al. vs. Barrett et al., comm’rs., Id., 604; 69 Ga., 283.

Judgment affirmed.