Hines, J.
1. The office of the writ of prohibition is to restrain subordinate courts and inferior judicial tribunals from exceeding their jurisdiction, so that each tribunal shall confine itself to the exercise of those powers with which, under the constitution and laws of the State, it has been entrusted. This writ lies “to arrest illegal proceedings by any court officer, where no other legal remedy or relief is given.” Civil Code (1910), § 5458; Doughty v. Walker, 54 Ga. 595; Seymour v. Almond, 75 Ga. 112; 32 Cyc. 598. The language of section 5450 of the Civil Code, that this writ will “lie to all other executive. or military officers,” means when they are acting as a judicial or quasi-judicial tribunal.
2. In hearing and determining a contest of a municipal election the ordinary does not act in a judicial or quasi-judicial capacity. Seymour v. Almond, supra; Carter v. Janes, 96 Ga. 280 (23 S. E. 201); Tupper v. Dart, 104 Ga. 179 (30 S. E. 624); Cutts v. Scandrett, 108 Ga. 620 (34 S. E. 186); Harris v. Sheffield, 128 Ga. 299 (57 S. E. 305).
3. Applying the above principles, the trial judge erred in not dismissing the application for this writ.
Judgment reversed.
All the Justices concur.
By an amendment to their petition, the applicants for the writ of prohibition alleged that so much of section 6 of the charter of the Town of Alpharetta (Acts 1920, p. 690), as provides for the contest of municipal elections in said town, is unconstitutional and void, for the reason that the same undertakes by a special law to provide for said contest, when sections 121, 122, 123, 124, and 125 of the Code of 1910 provide a general law for such purpose, and that said section 6 is in violation of the constitution of this State, which declares that -“no special law shall be enacted in any case for which provision has been made by an existing general law.” By another amendment the applicants alleged that the proceeding begun by the defendants to contest said election is not in conformity to law, and that O. C. Shirley, as ordinary, has undertaken to usurp a jurisdiction and power that is not given him by law, as is shown by the exhibits attached to the petition contesting said election, on one of which an order was passed notifying petitioners that said contest would be heard and determined before the ordinary on January 29, 1925. The ordinary had no jurisdiction to grant said order or to hear said contest in said way. The law provides that the way to start said contest is for the contestants to serve notice upon the contestees of the time and place of taking evidence before some judicial officer of the county, and give five days notice thereof, which was not done in this case; and after the taking of such evidence by the contestants, the contestees would have ten days in which to take their evidence. The contestants not having followed and complied with the law, and no evidence having been taken, said ordinary is without jurisdiction to hear said case, as he undertakes to do in his said order.
On the hearing of the application for prohibition, the defendants moved to dismiss the same on the grounds, (1) that under the facts and law as laid down in the case of Tupper v. Dart, 104 Ga. 179 (supra), the court was unauthorized to grant the writ of prohibition, and (2) that no process is prayed for in the petition. Due and legal service of the petition for prohibition and process was acknowledged by counsel for the defendants therein, and all further notice or service was waived. The trial judge refused to dismiss the petition for prohibition, upon the grounds aforesaid, and to this judgment the defendants excepted and assigned the same as error, as being contrary to law.
The case was then heard upon the pleadings. The court granted the writ of prohibition, and to this judgment the defendants excepted.
J. P. Broolce, for plaintiffs in error.
George F. Gober and G. B. Walicer, contra.