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Official Org-in of Houston County,
JOHN H. & JOHN L HODGES,
L BURY,
TnuitauAY, Jan. 4.
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' AMD CHICAGO
WWu;!ES i i AlL THE PRINCIPAL CITIES
JUDGE BRVAiii
DENIES MANDAMUS
The following is thq text of the
ruling Of Judge Sheppard Bryan
of the Superior Court of Fulton
County denying the mnndumus
ngaiust the Secretary of State in
the recent action brought by the
Peach County advocates
\ In the Superior Count of Fulton
County Georgia.
J. E. DAVIDSON
vs . I Mandamus
8. Cl. MoLENDQN
Secretary of State.
In thiscaso Hon. J. E. David
son and others, who are alleged to
be “citizens, residents and tax
payors of that portion of Peach
county’’hitherto apart of Hous
ton County, seek by inandainiiH to
compel Mon, 8. G. McLendon,
Secretary of Stale of the State of
Georgia, first to amend or supple
ment the cor till sale which he has
horotoforo filed with the Governor
of Georgia under date of Novem
ber 27ih, 1922 so as to eliminate
thorofrom an alleged condition or
qualification in said certificate, and
second, that ho be required to pro
ceed to count and ascertain the re
sult of the election held on the
first Tuesday in November, 1922,
. upon the question of ratifying the
proposed Constilul.ional amend
ment creating Poach County ns
provided in the Act of tho Gen
eral Assoinbly of Georgia approved
August 1 bl h, 1922.
Tho Secretniy of State files a
demurer upon nine different,
grounds, but tho general substance
of the demurer goes to tho claim
that (hepetition of the plaintiff’s
does not set out a cause of action
uudor the law.
Tho Secretary of State also files
an answer»vin which ho alleges,
paragraph 2, “that tho result of
the election” (tho election upon
the proposed Peach County amend
ment hold on the first Tuesday in
November) “was opposed to the
ratification of said constitutional
amendment as appears from tho
ivturns of his office,”
Tho Secretary of Stato in his an
swer also said “that it is true that
ho has only oountod and consoli
date i the veto torching the ratifi
cation of said amendment from the
returns as they appear in his office.
That theso returns come from the
proper sbifrccjj, and apparently
show the result of an election held
at the proper time and place and
by tho proper parties, ami that
this is his conception of his duty
in the promises that ho should in
his ministerial capacity consolidate
and count said vote and that ho 1ms
no judicial authority to do the
Pots of which complaint is made in
plaintiff’s petition.”
The Secretary of State further
says in his answer that he has
counted or consolidated the’re
turns of the election upon the
Peach County amendment and has
assertained the result and that he
has certified this result to the
G ivernor of Georgia, Ho says
that the result as it appears from
the returns jn his office shows
29.S42 votes for the amendment
and 36.5CG against the amendment
and that this is a correct state
ment of the returns.
The ease was argued at length
By counsel for both plaintiffs and
defendant, the argument consum
ing the entire day of
cember22nd, 1922.
(he returns of file in his office and
1ms certified this result to the
Governor. I think that the Sec
retary of Slate lias fully, complied
with the law*
Entering the opinion herein set
out and after considering tho do
murrer and motion for mandamous
absolute, it is proper that I should
pass (he following orders:
1. An order sustaining defen
dant’s demurrer upon all of tlie
various gouhds (herein set out ex
cept ground number eight, which
attacks the right of (lie plaintiffs
in this case to bring this suit. In
my opinion the plaintiffs are pro
per legal parties to t his proceeding.
2. An order denying tho motion
of plaintiffs for a mhndnmus ab
solute notwithstanding tho defen
dant \s answer.
Let this be filed with the papers
in said case. In open court.
This December 27th, 1i)22.
SHEPPARD BRYAN,
Judge, S C. A. C.
The best, is never too good in
anything, business or pleasure.
Ip you fail to do the
cannot get the best.
best you
Gnu,muling will not help in any
busi’ css nor is it productive in
attaining any sort of pleasure.
War debts still prevent recuper
ation in Europe of economic dis
agreement between the nations.
Tho questions involved were
presented with great zeal, skill and
ability by counsel by all parties.
Plaintiffs’ counsel submitted an
oral motion to make the mandam
us nisi a mandamous absolute not
withstanding tho answer of t lie de
fendant. '» ho motion is the oquiv
aleutofad murrer to the defen
dant’s answer and iiko the demur-
rer in the ca.-e, raises an issue of
law only.
There are, th-refore, two mat
ters for the cou:«ideration of the
court, as follows:
1. Is the defendant’s demurrer
good upon any one or mote of tin 1
grounds contained in said demur
rer?
2. A*’e the plaintiff entitled to
a mandamous absolute i \ on their
petition notwithstanding the de-
fendants’s answer?
After a most careful considera
tion and examination of tli- au
thorities submitted, 1 have reached
Ihe conclusion that tho Secretary
of Slate has performed the duty
imposed upon him by the Pe;"’b
County amendment Act of Ar-
gust 15th, 1022, by counting am"
ascertaining tho result of the elec
tion as shown by tho returns ’of
filo in his office, and that this re
sult., as stated by tho Secretary of
Stale, shows a majority against
the amendment creating Peach
County.
I think that tho question involv
ed in the attack made by the
plaintiffs in their petition upon
the election returns of file in the
olfico of the Sccrotary of Stale are
judicial questions and are for sub
mission to and determination by a
judicial tribunal. I do not believe
that tho Secretary of Stato is au
thorized or required to do more
than he has done in the case,
namely; to count the returns com
ing to his office from proper sour
ces and apparently showing the
result of an election held at tho
proper time and place and by tho
proper authorities and to state or
certify the result as shown by such
returns, to the Governor. /
I think that while tho certifi
cates of tho Secret ary of State,
dated November 27th, 1922, con
tains matter not properly belong
ing to tho certificate, it neverthe
less docs amount to a certificate
showing the result of tho election
as show by the returns filed in the
Secretary of State’s oflico. I think
that uudor the law all of the other
statements in tho Secretary’s cer
tificate should bo disregarded as
irrelevant and as having no place
in the oortifioate requited by the.
proposed Peach County amend
ment Act-
Under the case of Hammond vs
Clark, decided by the Supreme
Court of Georgia on May lith,
1911 and reported in 13G Ga., 313,
it is clear to my mind that the
question whether tho amendment
has been properly adopted or not
according to the requirements of
tho existing Constitution of Geor
gia is a judicial question. ( This dyorago yield of potatoes
The question as to whether or ( p Cr aC ro in the Uni led States varies
not this proposed amendment bu$f Pom about, 60 bm-hels in Texas to
been properly adopted or rejected , movo than 200 bushels in Maine,
Ip you don’t, know how, take
earnest lessons from your neigl>
bor who do°s know.
South Georgia farmers made
material agricultural progress last
year and much more is expected
this year.
■ 1/
There is need of a large increase
in economic production in the
towns as well as on the farms in
Georoia.
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and the crops will apt to be good
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Middle Georgia did not, sell
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Hatcher-Turpm Go.
235 Mulberry St.
Maeon, Georgia.
is not, before this Court in this ap
plication for mandamous. The ef-
acoording to reports of tho United
States Department of Agriculture
feet of my ruling in this case is The average for the entire country
that the Secretary of Stato lias ns
certained the result as shown by
for the past 10 years
per acre.
is S8 bushels
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