#### Moore *v.*Dugas *et al.*

No. 6506.

June 12, 1928.

Petition for injunction. Before Judge Sutton. Lumpkin superior court. January 13, 1928.

On December 17, 1927, an election was held for mayor 'of the *494City of Dahlonega. G-. C. Dugas and G-. H. Moore were the only candidates. The managers of the election filed a list of voters and a tally-sheet with the clerk of the city council, for delivery to and inspection by said council; and on December 20, 1927, within five days after said election, the city council, in compliance with section six of the charter of the city (Acts 1899, p. 147 et seq.), met and declared the result of the election. The council declared the result of the election to be that Dugas received 141 votes and that Moore received 164 votes, and declared that Moore was elected mayor of the city for a term of two years, beginning January 1, 1928. When the result of the election was declared Dugas had not given notice of any contest of the election. On December 22, 1927, Dugas filed with the ordinary of the county his petition addressed to that officer, contesting the election of Moore as mayor, and setting forth the grounds of contest. To this petition was attached a notice from Dugas to Moore that Dugas would contest the election upon the grounds of contest set out in the petition, and that he would take testimony before the ordinary, beginning at ten o’clock a. m. on December 28, 1927, in support of his grounds of contest. The ordinary entered upon the petition an indorsement of its filing on December 22, 1927, directed that the petition and the notice attached be served on Moore, and set December 28, 1927, as the time for the taking of testimony. The petition and notice of contest were served on Moore on December 22, 1927. Thereupon Moore filed his equitable petition to enjoin the contest proceedings, upon the grounds, (a) that the declaration of the result of the election by the city council, in which that body declared petitioner to be elected mayor for the years 1928 and 1929, said declaration having been made prior to the notice of contest, and within the scope of the power and authority of the city council, was final, and vested petitioner with the right and power to exercise the office of mayor of the city for said years; and (b) that the ordinary was disqualified to hear said contest, on the ground of bias and prejudice against petitioner, said officer being the editor of the Dahlonega Nugget, a newspaper published in the City of Dahlonega, in which organ the ordinary had adversely criticised the administration of the affairs of the city by petitioner, who was then filling the office of mayor, and was an active supporter and partisan of the contestant. Injunction was denied.

*493Hines, J.

1. By section 6 of the charter of the City of Dahlonega, the managers of an election for mayor in that city are required to count the ballots, consolidate the returns of said election, and certify the same. They are required to keep two lists of voters, and two tally-sheets, and to make certificate of the result on each tally-sheet, and place one of said lists of voters and *one oí*said tally-sheets, together with the ballots, in an envelope or box, and seal the same and deposit it with the clerk of the superior court of Lumpkin County. They are required to file the other list of voters and tally-sheet with the clerk of the city council, for delivery to and inspection by said city council, who shall meet within five days after said election is held, and declare the result of the same. Acts 1899, p. 146 et seq. .

2. Whenever any contest arises over an election of a mayor of a municipality, the same shall be filed with and heard and determined by the ordinary of the county wherein such contest may arise, under the same rules and regulations as to the mode of procedure as prescribed in contests where commission is issued by the Governor. Civil Code, § 125.

3. The declaration by the city council of the result of an election for mayor of the City of Dahlonega, under the above provision of its charter, is not final and conclusive, and does not prevent the defeated candidate from contesting the election of a rival candidate under the above provision of the Civil Code. *Low*v. *Towns,*8 *Ga.*360; *McCants*v. *Layfield,*149 *Ga.*231 (99 S. E. 877); *Bennett*v. *Public Service Commission,*160 *Ga.*189 (127 S. E. 612).

4 No ordinary can sit in any cause or proceeding in which he is pecuniarily interested, or related to either party within the fourth degree of consanguinity or affinity, nor of which he has been of counsel, nor in which he has presided in any inferior judicature when his ruling or decision is the subject of review, without the consent of all the parties in interest. Civil Code, § 4642.

*(а)*The above statutory grounds of disqualification of an ordinary are exhaustive, and the fact that the ordinary is a partisan of the contestant does not disqualify such oifieer from presiding in the contest of the mayor’s election. *Elliott*v. *Hipp,*134 *Ga.*844 (68 S. E. 736, 137 Am. St. R. 272, 20 Ann. Cas. 423).

(б) Prejudice or bias, not based on interest, will not disqualify the ordinary from presiding in such a contest. *Tibbs*v. *Atlanta,*125 *Ga.*18 (53 S. E. 811) ; *Beavers*v. *Armistead,*156 *Ga.*833 (5) (120 S. E. 526).

5. The writ of injunction can not be made directly or indirectly the method of trying the title to a public office. *Tupper*v. *Dart,*104 *Ga.*179 (30 S. E. 624).

6. Applying the above principles, the trial judge did not err in refusing to grant an interlocutory injunction restraining the ordinary and the contestant from proceeding with the contest.

*Judgment affirmed.*

*All the Justices concur.*

*494*Wheeler & Kenyon,*for plaintiff. *Jones & Reid,*for defendants.