#### Seymour *et al. vs.*Almond, ordinary.

1. The writ of prohibition issues only to prohibit action by an inferior court. The ordinary, in respect to an election to decide the question of fence or no fence, is not a court, but an officer of the body politic of the state, to whom is confided the ordering, supervision and announcement of the result of an election on that issue.

2. If he acted in these matters as a court, the writ of prohibition would issue only to stop him from acting as such, if the subject-matter was beyond his jurisdiction. In this case, the subject-matter is entirely within the jurisdiction of this officer and none other.

3. Wo court is permitted by the statute, authorizing this election and the decision thereon by the ordinary, to interfere therein. This court so decided, and at a subsequent session, the legislature have not altered the statute so construed.

4. Even if the superior court had jurisdictional power to intervene by prohibition, it ought not to do so before some action by the ordinary was had, indicating plainly that that officer would adjudicate, if a judicial officer, or would act, if a mere official, *quoad hoe,*of the political power of the state, contrary to right, justice and truth, so plainly showing that he would so act or adjudge as to overcome the presumption that every public officer will do right until the contrary is manifest.

February 10, 1886.

*113Elections. Ordinary. Prohibition. Equity. Courts. Officer. Before Judge Lumpkin. Elbert Superior Court. September Term, 1885.

Seymour and others filed their petition for prohibition to prevent the ordinary from determining and declaring the result of an election held on the question of fence or no fence. Yarious points of illegality were alleged as to the manner of holding the election, among others, that the ordinary failed to state in his order that the election must be held “under the same rules and regulations as provided in elections for members of the general assembly; ” that his order and instructions misled the superintendents of districts, and returns were made to him without consolidation; that there was an illegal attempt to make a consolidated return after 12 m. by the superintendents of the districts where the majority was in favor of “ no fence,” the object being to make it appear that the majority vote was that way, though this was not the case, the real majority of the votes being the other way; that an objection had been filed with the ordinary to the effect that, under the circumstances, no result at all could be declared; that the ordinary had thereupon published a notice that he would hear the matter at a certain date; and that he had stated that if be had to draw his order and issue his instructions again, he would do as he did before.

On demurrer, the presiding judge dismissed the application, and the applicants excepted.

W. M. & M. P. Reese ; John T. Osborn ; John 0. Reed, for plaintiffs in error.

John P. Shannon ; Jos. N. Worley ; H. J. Brewer ; H. A. Roebuck; W. N Harris; F. H. Colley, for defendant.

Jackson, Chief Justice.

This is a writ of error to the superior court of Elbert *114county to review the judgment of that court in declining to grant the writ of prohibition to the ordinary of said county, prohibiting that officer from declaring the result of an election ordered by that officer on the issue of fence or no fence.

There was no error in the denial of the writ for the following reasons:

1. First, the writ only issues to prohibit action by an inferior court. The ordinary, in respect to this election, is not a court or j udicatory, but an officer of the body politic of the state to whom is confided the ordering, supervision and announcement of the result of an election on the issue of fence or no fence.

2. If he acts in these matters as a court, then the writ of prohibition would only issue to stop him from acting as such court, if the subject-matter was beyond his jurisdiction. In this case the subject-matter in its entirety from the order for the election on the petition required by law, up to the declaration of the final result and the publication thereof, is within the jurisdiction of this officer and of no other officer.

3. No court is permitted by the statute authorizing the election and the decision thereon by the ordinary to interfere therein, as this court has decided ; and after these decisions of this court so construing this statute, the general assembly has been in session for months and no amendment has been made to the statute, or other action had by that body, disapproving of that interpretation of the statute, thereby tacitly approving of the judicial construction of the act on the point of the finality of the ordinary’s action.

4. Even if the superior court had jurisdictional power to intervene by prohibition, it ought not to do so before some action by the ordinary was had, indicating plainly that that officer would adjudicate, if a judicial officer, or act, if a mere official, *quoad*hoc, of the political power of the state contrary to right, justice and truth,—so plainly *115showing that he' would so act or adjudge as to overcome the world-wide presumption, that every public officer will do right until the contrary is manifest.

The principles hereinbefore .declared will be apparent by a glance at the following citations: 3 Chitty’s Blackstone, pp. 111, 112, 113, 114; Wells on Jurisdiction, §§516, 517, 48; High on Extra. Rem., §§768, 771, 772, 777, 780, 782; 784, 790; Wood on Man., pp. 101, 113, 115, 148, 149; Code, §3209; 61 *Ga.,*156.

Code, §1455; 69 Ga., 280, 283; 71 *Ib.,*205; *Skrine et al. vs. Jackson et al.,*73 *Id.,*377; *Caldwell et al. vs. Barrett et al.,*Comm'rs, *Ib.,*604.

Judgment affirmed.