Summary
In Whittle v. Whitley, 202 Ga. 633 (44 S.E.2d 241), this court held that the requirements as to notice of such a special election was mandatory, and a failure to comply therewith vitiated the election; and this court further held that, in these circumstances, a petition by licensed liquor dealers, seeking to enjoin the ordinary from putting the result of such an election into effect, set forth a cause of action.
Summary of this case from Barrentine v. GrinerOpinion
15896.
SEPTEMBER 6, 1947.
Petition for injunction. Before Judge Eve. Irwin Superior Court. April 14, 1947.
J. W. McDonald, A. J. McDonald, and R. D. Smith, for plaintiffs.
Murphey Rogers, E. C. Collins, and W. R. Mixon, for defendants.
1. Upon the filing with the ordinary of a petition signed by thirty-five percent of the registered voters of the county, he shall call a special election on the question of legalizing and taxing liquor, to be held within 30 days from the filing of such petition, and shall publish notice of the call of the election in the official gazette of the county once a week for two weeks preceding the election. Ga. L. 1937-1938, Ex. Sess., p. 103; Code (Ann. Supp.), § 58-1003.
2. The requirement of notice of such special election is mandatory, and the failure to comply therewith vitiates the election. Davis v. Dougherty County, 116 Ga. 491 ( 42 S.E. 764); Coleman v. Board of Education, 131 Ga. 643 ( 63 S.E. 41); Roberts v. Murphy, 144 Ga. 177 ( 86 S.E. 545). If the election is advertised once a week for two consecutive weeks, this will not satisfy the law if the election is held on Saturday of the last week during which the notice was published. Under the law the two weekly publications of notice must precede the week in which the election is held. Conley v. Redwine, 109 Ga. 640 ( 35 S.E. 92, 77 Am. St. R. 398).
3. Accordingly, the petition of licensed liquor dealers, alleging that the election had been held under a call of the ordinary and on Saturday of the second week in which notice of the call was published, and that the ordinary had declared the result to be against the sale of liquor, and praying that both the order calling the election and the order declaring the result be decreed void, and that the ordinary be enjoined from putting the result of the election into effect, was not subject to the general demurrer, and the court erred in sustaining that demurrer and in dismissing the action.
Judgment reversed. All the Justices concur, except Wyatt, J., who took no part in the consideration or decision of this case.