Constitutionality.

- This section, insofar as it authorizes holding election for purpose of nullifying previous election legalizing alcoholic beverages in county, is not unconstitutional as violative of due process on ground that no provision is made for right to contest election held thereunder or on ground that provision is so indefinite that any proceeding amounts to a taking of property of qualified distributors of alcoholic beverages without due process of law. Sanders v. Mason, 197 Ga. 522, 29 S.E.2d 780 (1944).

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.

- The legislature intended in enacting this section only to give those counties which had voted favorably for control the same means of abolishing or repealing the control of manufacture, sale, and distribution of alcoholic beverages and liquors; the section does not render a previous election void ab initio, so as to be retrospective. Thacker v. Morris, 196 Ga. 167, 26 S.E.2d 329 (1943) ??? (decided under former Ga. L. 1941, Ex. Sess., p. 199).

Ga. L. 1937-38, Ex. Sess., p. 103, § 4 and Ga. L. 1941, p. 199, § 1 (see now O.C.G.A. § § 3-4-41 and3-4-46) 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 Ga. L. 1941, p. 199, § 1 (see now O.C.G.A. §§ 3-4-41 and3-4-46) would disclose that before the ordinary (election superintendent) was 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).

Among the prerequisites to the call of an election for nullifying a previous election are: (1) no election can be called within two years after the date of the declaration of the result of a previous election; (2) no election shall be called except upon the petition of at least 35 percent of the registered qualified voters, qualified to vote in the general election immediately preceding the presentation of the petition; and (3) the election shall be held within 30 days from the filing of the petition, and notice of the election shall be published in the official gazette of the county once a week for two weeks preceding the election. Barrentine v. Griner, 205 Ga. 830, 55 S.E.2d 536 (1949).

The requirement as to notice of special election was mandatory, and failure to comply therewith vitiated election; in these circumstances, petition by licensed liquor dealers, seeking to enjoin the ordinary (election superintendent) from putting the result of such election into effect, set forth a cause of action. The prerequisite as to proper petition by 35 percent of qualified registered voters is also mandatory, and it follows that failure to comply with the mandatory prerequisite vitiates election. Barrentine v. Griner, 205 Ga. 830, 55 S.E.2d 536 (1949).

Effects of violations of mandatory and directory provisions on validity of election.

- There is a marked distinction between mandatory provisions of law in regard to calling of election and those which are merely directory to officials in holding them. A substantial violation of mandatory provisions affects validity of election, while a failure of strict compliance with directory provisions of law, or mere irregularities on part of election officers, will not generally do so; and the latter are usually the subject matter of contests. Barrentine v. Griner, 205 Ga. 830, 55 S.E.2d 536 (1949).

When petition has been acted upon and election ordered by designated authorities, presumption is that petition was in due and legal form and that it was signed by requisite percentage of qualified voters, and in absence of any evidence to the contrary, that presumption is sufficient. Sanders v. Mason, 197 Ga. 522, 29 S.E.2d 780 (1944); Williams v. Gould, 203 Ga. 96, 45 S.E.2d 218 (1947).

Court of equity is not authorized to surmise or assume invalidity of signatures regularly presented to the ordinary (election superintendent), or to enjoin such officer from calling an election in the face of the ordinary's prima facie determination as to the sufficiency of the consolidated petition presented. Williams v. Gould, 203 Ga. 96, 45 S.E.2d 218 (1947).

Rebuttable presumption that election superintendent performed statutory duties.

- The action of the ordinary (election superintendent), as result of petition having been filed with the ordinary, in calling election and declaring results thereof, determines prima facie that requirements of this section providing for calling of such election have been complied with in due and legal form. This is nothing more nor less than a rebuttable presumption that the ordinary has properly performed the required duties. Sanders v. Mason, 197 Ga. 522, 29 S.E.2d 780 (1944).

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).

Effect of void election on holding subsequent election within two years.

- An election which through noncompliance with the law has been ruled void by superior court is not considered an election within meaning of this section so as to prevent another election within two years. 1958-59 Op. Att'y Gen. p. 204.

Am. Jur. 2d.

- 45 Am. Jur. 2d, Intoxicating Liquors, § 98 et seq.

C.J.S.

- 48 C.J.S., Intoxicating Liquors, § 59.