Term "qualified" construed.

- Voters whose names appeared on a voter registration list on the date of the last general election were "qualified" to vote in that general election within the meaning of O.C.G.A. §§ 3-4-41(a) and21-2-231. Abercrombie v. Shaddix, 250 Ga. 170, 295 S.E.2d 832 (1982).

Striking of names from voter list for failure to vote.

- Probate judge correctly applied subsection (a) of O.C.G.A. § 3-4-41 by excluding from the judge's count of names on petition to call special election those voters whose names appeared upon voter registration list on date of last general election but had been stricken from that list under O.C.G.A. § 21-2-231 for failure to vote between date of last general election and date of filing of petition to call election and thus were no longer "registered voters" of the county. Abercrombie v. Shaddix, 250 Ga. 170, 295 S.E.2d 832 (1982).

The General Assembly intended for voters whose status is affected by O.C.G.A. § 21-2-231, regarding loss of qualification for failure to vote, to remain "qualified" within meaning of subsection (a) of O.C.G.A. § 3-4-41 until their names actually are deleted from the voter registration list. Abercrombie v. Shaddix, 250 Ga. 170, 295 S.E.2d 832 (1982).

No standing to attack constitutionality.

- Constitutional attack on this section by corporations who were selling intoxicants in dry county under allegedly valid licenses was dismissed since corporations had no property rights to have such license and therefore were without standing to attack this section. DeKalb County v. Florentine Corp., 228 Ga. 228, 185 S.E.2d 85 (1971).

Legislative intent.

- Purpose of this section is to permit such elections to be held, not to provide technicalities by which a popular vote may be thwarted. Committee for New Cobb County Revenue v. Brown, 228 Ga. 364, 185 S.E.2d 534 (1971).

Requirement of notice of special election is mandatory, and failure to comply therewith vitiates election. Whittle v. Whitley, 202 Ga. 633, 44 S.E.2d 241 (1947).

Ga. L. 1937-38, Ex. Sess., p. 103, §§ 4 and 9 (see now O.C.G.A. §§ 3-4-41 and3-4-47) must be construed together. Barrentine v. Griner, 205 Ga. 830, 55 S.E.2d 536 (1949).

Election a nullity absent proper petition.

- A cursory reading of both Ga. L. 1937-38, Ex. Sess., p. 103, §§ 4 and 9 (see now O.C.G.A. §§ 3-4-41 and3-4-47) will disclose that before the ordinary (election superintendent) is authorized to call an election under either section a petition signed by 35 percent or more of the qualified voters of the county must be presented. It follows that if either election be called without such petition having first been presented, such election is a nullity. Glass v. State, 75 Ga. App. 602, 44 S.E.2d 143 (1947), overruled on other grounds, Domin v. State, 85 Ga. App. 676, 70 S.E.2d 39 (1952).

Consolidated individual petitions sufficient.

- Where there were several circulated petitions seeking to call a special election to nullify previously voted authority for sale of alcoholic beverages and liquors within county, but majority of names were signed to individual petitions asking in legal terms that election be called, each petition signed by one individual registered voter, and all petitions were pasted in one consolidated petition and presented to the ordinary (election superintendent), such consolidated petition was held to be sufficient in form to meet requirements of this section, there being evidence to show there was a sufficient number of signatures to bring the total to the required 35 percent. McCluney v. Stembridge, 206 Ga. 321, 57 S.E.2d 203 (1950).

Disqualification of election superintendent for signing petition.

- The fact that the ordinary (election superintendent) was one of those who signed, as an individual, a petition requesting the call of a special election for purpose of submitting to qualified voters of county the question of taxing, legalizing, and controlling alcoholic beverages and liquors, did not show that the ordinary was disqualified because the ordinary was pecuniarily interested in the matter before the ordinary, or that the ordinary was otherwise disqualified from calling and holding a special election. McCluney v. Stembridge, 206 Ga. 321, 57 S.E.2d 203 (1950).

Verification of petitions prior to call for election.

- The ordinary (election superintendent) is required to verify that petitions were signed by at least 35 percent of registered voters before the ordinary can issue a valid election call, and this prerequisite is mandatory. The only requirement imposed by this section with respect to the petition is that it be "signed by at least 35 percent of the registered voters qualified to vote at the general election immediately preceding the presentation of the petition." The calling of the election by the ordinary as authorized by this section determines at least prima facie that the petitioners are of the class and are of a sufficient number as required by this section for the purpose of calling an election. Committee for New Cobb County Revenue v. Brown, 228 Ga. 364, 185 S.E.2d 534 (1971).

Waiving statutory time period for holding election.

- While this section provides that the ordinary (election superintendent) "shall call a special election to be held within 30 days from the filing of such petition," this is not an absolute requirement that election must be held within that period of time. Where election is not required by statute to be held on a date certain, and where election is prevented by court order, it is permissible to reschedule election after expiration of court's injunction even though the 30-day period has elapsed. If there is a statutory time period within which election must be held and, following litigation, there is no longer time to hold election within statutory period, an election may be held after statutory period has expired. Committee for New Cobb County Revenue v. Brown, 228 Ga. 364, 185 S.E.2d 534 (1971).

Compliance of call for election with section.

- Where call for election as issued by the ordinary (election superintendent) on the question of legalizing alcoholic beverages gave notice that election would be held in all voting precincts of county, and that voting polls would be open in all voting precincts of county between the hours of 7:00 A.M. and 6:00 P.M., and that those qualified to vote at the election would be determined in all respects in accordance with the laws governing elections for members of General Assembly, the call was in substantial accord with this section and was sufficient. McCluney v. Stembridge, 206 Ga. 321, 57 S.E.2d 203 (1950).

Notice requirement.

- If election is advertised once a week for two consecutive weeks, this will not satisfy this section if election is held on Saturday of last week during which notice is published. Under this section the two weekly publications of notice must precede the week in which election is held. Whittle v. Whitley, 202 Ga. 633, 44 S.E.2d 241 (1947).

Resubmission of question after election resulting in tie vote.

- Where a liquor election was held under this section, fact that election resulted in tie vote did not make it the duty of the ordinary (election superintendent) to resubmit question to voters. Broadhurst v. Hawkins, 188 Ga. 316, 3 S.E.2d 905 (1939).

Judicial notice of dry or wet status of county.

- Accusations and indictments charging liquor violations need not allege that counties in which they are preferred have held an election to comply with the law, this being a matter of which the courts will take judicial notice. Domin v. State, 85 Ga. App. 676, 70 S.E.2d 39 (1952).

Municipal citizens voting in county-wide elections.

- Registered and qualified voters in municipal elections may sign petitions and vote in both municipal and county elections held pursuant to O.C.G.A. § 3-4-41, but a county referendum is only binding on the unincorporated areas of the county. 1985 Op. Att'y Gen. No. U85-48.

Single petition for approval of package sales, and sales by the drink, allowed.

- A single petition may be used for the purpose of invoking the referendum procedures for approval of package sales of distilled spirits and sales of distilled spirits by the drink for consumption on the premises if the petition clearly sets forth that it is for both purposes and the questions are presented separately in the referendum in the manner prescribed by law. 1985 Op. Att'y Gen. No. 85-22.

Legislative intent.

- The apparent intent of this section is to require showing of significant degree of current voter support for a referendum on legalizing alcoholic beverages before actually conducting such a referendum. 1979 Op. Att'y Gen. No. 79-71.

This section requires the signatures of 35 percent of the citizens who were registered to vote at the preceding general election. 1970 Op. Att'y Gen. No. 70-172.

In the event of a conflict between Ga. L. 1972, p. 207, § 3 and former Code 1933, §§ 34-806 and 34-1314 (see now O.C.G.A. §§ 3-4-41 and21-2-540), concerning the date for holding a liquor referendum, former Code 1933, §§ 34-806 and 34-1314 controlled. 1979 Op. Att'y Gen. No. 79-23.

"Filing" defined.

- The word "filing" in this section, means the date petition is handed to the ordinary (election superintendent), not date upon which petition is determined to be valid; the situation is comparable to filing of nomination petitions. 1972 Op. Att'y Gen. No. U72-42.

The word "filing" as used in this section means the date on which petition is handed to appropriate official, not date on which petition is determined to be valid. 1979 Op. Att'y Gen. No. 79-23.

There is no time limit for circulating petition to call an election to determine whether sale of intoxicating liquor shall be approved in county. 1954-56 Op. Att'y Gen. p. 455.

Election a nullity absent proper petition.

- No special election under this section may be called by a municipality except upon the petition of at least 35 percent of the registered qualified voters, and any such election called by a city council without such petition having first been presented would be a nullity. 1975 Op. Att'y Gen. No. U75-19.

Persons qualified to vote.

- Persons qualified to vote for members of General Assembly, and who were registered to vote at general election immediately preceding the filing of petition requesting the election to determine sale of intoxicating liquor, are eligible to vote in the election. 1954-56 Op. Att'y Gen. p. 456.

Percentage of voters.

- There is no requirement that percentage of registered voters relate in any way to number of electors who actually voted in any preceding general election. 1979 Op. Att'y Gen. No. 79-71.

The percentage of voters set forth in this section refers to the number of individuals qualified to have voted in the last election scheduled to have been held by the municipality even though such election was not conducted. 1979 Op. Att'y Gen. No. 79-71.

Petition for wet and dry election should be checked against official registration for last general election. 1948-49 Op. Att'y Gen. p. 173.

Challenging signatures on petition.

- There is no provision in the law whereby any group or any person may challenge signatures of persons signing a petition to hold an election to legalize sale of intoxicating liquors except by attacking legality of election; nor is there any provision for publication of names on the petition. These are solely the functions of the ordinary (election superintendent). 1957 Op. Att'y Gen. p. 174.

Effect of county election on time of holding municipal election.

- A municipal election is quite separate from any previous county election, and the failure of legalization at a county election would not prohibit a municipal election during the following two years under this section; a municipal election can be held as soon as the petition procedures are complied with. 1972 Op. Att'y Gen. No. U72-46.

Am. Jur. 2d.

- 45 Am. Jur. 2d, Intoxicating Liquors, §§ 27, 87 et seq., 101, 111.

C.J.S.

- 48 C.J.S., Intoxicating Liquors, §§ 59, 62 et seq.