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DUCKWORTH, Chief Justice.
Mandamus. Before Judge Carpenter. Baldwin Superior Court. September 14, 1956.
1. This court will not decide abstract questions or consider a writ of error where it is made to affirmatively appear that our judgment could not be effectuated by the trial court. The petition here seeks to obtain the writ of mandamus compelling the Ordinary of Baldwin County to call an election of county commissioners, authorized by Georgia Laws 1956, p. 2725, which creates a new board of commissioners for Baldwin County. While that act provides for the election to be held on November 6, 1956, which has already passed, it further provides that the terms of all commissioners serving at the time of the approval of the act in the referendum election shall be abolished on December 31, 1956. Thus the act expressly abolishes the then-existing commissioner offices, but fails to provide for filling vacancies. It provides for the election of the first members of the board for a term of four years at the same time as the county officers shall be elected in 1956. Since the time for regular elections has passed and the new offices are vacant, the provisions of Code (Ann. Supp.), 23-801 (Ga. L. 1898, p. 93; 1947, p. 173) became operative and applicable, since the terms provided in the 1956 act extend longer than six months from January 1, 1957. The prayer that the ordinary be required to call an election on November 6, 1956, "or such other time as may be proper," becomes definite in the light of this Code section which requires the ordinary to call a special election. This means, the duty arises instantly upon the occurrence of the vacancy, and while new commissioners were not elected on November 6, 1956, it became the duty of the ordinary to fill the vacancies which would occur under the law. Obviously, therefore, the case is not moot and the motion to dismiss on that ground is denied. See Haley v. Bailey, 199 Ga. 486 (34 S. E. 2d 685); Robertson v. Temple, 207 Ga. 311(1) (61 S. E. 2d 285); Ford Motor Co. v. Abercrombie, 207 Ga. 464 (62 S. E. 2d 209); and other cases cited in these cases.
2. The judgment dismissing the petition on demurrer in the previous action by other citizens and taxpayers seeking a writ of mandamus to require the Ordinary of Baldwin County to certify the true announced results of said election to the Secretary of State, as required by law, would not bar this action either by estoppel by judgment or as being res judicata. The former suit involved the certification of the election approving an act of the legislature, whereas this suit involves the calling of an election to fill offices created by that act. The subject matter is entirely different, and the former judgment is no bar to this action. Accordingly, the judgment sustaining the plea is erroneous, and the judgment dismissing plaintiff's petition, which was based upon that erroneous judgment, is likewise error.
This is a suit for mandamus to require the Ordinary of Baldwin County, Georgia, to call an election for the purpose of electing members of the Board of Commissioners of Roads and Revenues for said county in conformity with an act of the General Assembly (Ga. L. 1956, p. 2725) creating a new board of commissioners elected from districts, whereby a referendum election was required for it to become effective. The petitioner, who alleges that he is a citizen, taxpayer, resident, qualified voter, and a candidate for membership on the board from Commissioner District No. 3, states that the majority of persons voting in the referendum election voted for approval of the act creating the new board, but that the ordinary illegally and without authority of law undertook to declare additional and different results in her certificate to the Secretary of State, by adding certain undecipherable ballots cast as voting in the election, thereby resulting in a minority either voting for or against the act, but that her certificate showed 1,394 persons voting for approval, 1,385 against approval, 30 persons voting undecipherable ballots, and a total of 2,809 persons voting, which resulted in a failure of a majority voting for approval therefor; that, having an interest in the conduct of the affairs of the county and a legal and valid right to become a candidate, he has made a demand upon the respondent to call for an election for membership on said board, to publish the fact that such election has been called so that all may have notice of such election, and that such demand has been refused; that the act required the first election to fill vacancies thus created by the new act to be at the same time as county officers are elected in the year 1956 who are to be elected at the November general election, 1956, to be held Tuesday, November 6, 1956; and he prays that the ordinary be required to call and publish notice of an election to be held November 6, 1956, or such other time as may appear proper for the purpose of electing members to the Board of Commissioners of Roads and Revenues of Baldwin County.
A plea styled a plea in abatement and plea in bar was filed, alleging that a general demurrer had been sustained to another petition for mandamus brought by named citizens, taxpayers, and qualified voters, on behalf of themselves and all others similarly situated, to require the ordinary to certify the true announced results of said election to the Secretary of State; and that this judgment, not being excepted to, has adjudicated all questions between the parties and is res judicata as against the petitioner, and the petitioner is estopped by the judgment in the former mandamus action.
The case having been called for hearing and all parties agreeing that the judge might pass on the plea and render a final decision without the intervention of a jury, the case Was submitted on the plea as an agreed statement of facts. The plea was sustained, final judgment was rendered in favor of the respondent, and the petition was dismissed. The exception is to that judgment.
J. A. Gilmore, Robert H. Herndon, Randall Evans, Jr., contra.
D. D. Veal, for plaintiff in error.
Saturday May 23 01:56 EDT

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