Blandford, Justice.
There are two questions made by this record: (1st) Is an election held by three persons, one of whom is neither an ordinary, justice of the peace nor freeholder, valid and legal? (2d) Is an election legal which is held at a place different from that which has been established according to law as an election precinct? The court below held the election-held by a person who was not an officer nor a freeholder was invalid, and that the ordinary did right to refuse to count the vote of such an election; and also that the ordinary did right to refuse to count the votes of an election held at a place different from that which had been established as an election precinct. This decision is excepted to and error thereon assigned to this court.
An election was held in the county of Baldwin, under the act of 1885, for and against the sale of spirituous liquors, and at one precinct, one Farrar acted as a manager, and he was neither an officer nor a freeholder ; it was also held at another place, which place was three miles from the place which had been established as an election precinct. Upon a contest, under the act, all questions of law and fact were, by the consent of parties, referred to his honor, Hon. Thomas G. Lawson, the presiding judge, for his determination, and he ruled as before set forth. We think the case was properly ruled and decided by the court below, and that any other ruling would have been errone ous, and that our own code determines every question in this case. Section 1282 provides that persons qualified to hold elections are ordinaries, justices of the peace and freeholders; that there must be three superintendents. Farrar, who was a superintendent and one of the three superintendents who held the election at one precinct, was not a freeholder or officer authorized to manage and superintend an election, was not qualified to hold the election under the code; consequently, the election was not legally held at this precinct. There must be three superintendents, and they must be qualified as prescribed by the code; if not, the election is invalid, and the vote should not be counted.
By section 1334 of the code, it is enacted: “No election shall be defeated for non-compliance with the requirements of law, if held at the proper time and place by persons qualified to hold them. . . .” This clause contains a negative pregnant, it being big with the contrary proposition, that the election shall be defeated if not held at the proper time and place, and by persons qualified to hold them; and this is what the statute means. It is, therefore, clear that the election held at Butts’ instead of Pugh’s, the proper place established for such purpose, was likewise invalid. So we think the court below did right in affirming the action of the ordinary in throwing out and refusing to count the vote held at these two precincts, the result being to give a majority in favor of “against the sale.”
In the case of Sanford, ordinary, vs. Walker et al., the courts awarded the costs in the contest against the county, and this judgment is excepted to by the ordinary. There is no provision made in the act of 1885, in case of contests, for any costs, nor for the payment of the same, nor do we know of any general law on this subject; none has been shown to us, and unless the law in some way provides for costs, we know of no right in the courts to establish costs and to provide for their payment. This power is legislative and does not belong to the courts. See Keen vs. Rouse, ordinary, 44 Ga. 601. Until a recent act of the legislature, the managers of elections received no compensation for holding elections; this was a public duty, such as militia duty, working on roads, etc. So the duties performed by the officers and others in this case are public duties, for which no compensation is provided by law. So we think the court erred in awarding the costs against the county, as there is no provision made in the case for any costs. 2 Kelly, 240.
Judgment affirmed in first case; reversed in second.
See 62 Am. Dec. 424.