Constitutionality.

- Former Code 1895, § 391 et seq. (see O.C.G.A. § 36-4-1 et seq.) did not fall because of conflict with the Constitution as to the number of votes required to remove or change the county site. The sole purpose of these sections was to provide machinery to carry out the constitutional provision relative to a change of county sites by providing an election by striking out the requirements as to the number of votes, which was already fixed by the Constitution; these sections remain complete in themselves and capable of being carried out in accordance with the legislative intent. Lee v. Tucker, 130 Ga. 43, 60 S.E. 164 (1908) (decided prior to revision of section by Ga. L. 1911, p. 54, § 1).

General Assembly not bound by findings of Secretary of State.

- General Assembly, in determining the facts and legislating upon the removal of county sites under former Civil Code 1910, § 486 et seq. (see O.C.G.A. § 36-4-1 et seq.), is not bound by the findings of the Secretary of State as to the result of the election. Bachlott v. Buie, 158 Ga. 705, 124 S.E. 339 (1924); Cowart v. Manry, 166 Ga. 612, 144 S.E. 21 (1928).

Failure of General Assembly to legislate.

- When the removal election was held on May 5, 1927, and the General Assembly of 1927 did not pass any legislation thereon, the General Assembly of 1929 had the constitutional power and authority to pass an Act removing the county site. Cowart v. Manry, 166 Ga. 612, 144 S.E. 21 (1928).

Act for removal of county seat does not impair obligation of contract.

- Act for the removal of the county seat does not impair the obligation of contract. In such matters one legislature had not the right to bind all subsequent legislatures. Hamrick v. Rouse, 17 Ga. 56 (1855) (decided prior to revision of section by Ga. L. 1911, p. 54, § 1).

Duty of ordinary (now judge of the probate court).

- Under the provisions of this section, the power to call an election to determine whether in a given county there shall be a change of the location of the county site is vested in the ordinary (now judge of the probate court) and even if the General Assembly had power in a given case to so change this general law as to vest this power in another official, the Act approved December 8, 1886, creating a Board of Commissioners of Roads and Revenues for the County of DeKalb, neither vested nor sought to vest such power in the board of commissioners created by it. Wells v. Ragsdale, 102 Ga. 53, 29 S.E. 165 (1897) (decided prior to revision of section by Ga. L. 1911, p. 54, § 1).

If, in order to find that the petition contains the requisite two-fifths, it is necessary for the ordinary (now judge of the probate court) to act upon extraneous evidence, explaining that names on the petition and the digest list, though different, in fact refer to the same persons, and that certain names on the digest list are of deceased persons and persons removed from the county, then there is no absolute duty to call the election. After refusal by the ordinary (now judge of the probate court) mandamus will not lie to compel the ordinary (now judge of the probate court) to act. Barrett v. Ashmore, 137 Ga. 545, 73 S.E. 825 (1912) (decided prior to revision of section by Ga. L. 1911, p. 54, § 1).

Order shall not specify particular place of removal.

- Petition for the election should be for an election for the removal of the county site, and the order calling the election should show that it is one for the removal of the actual county site, without specifying a particular place to which it shall be removed, so as to leave to the qualified voters free choice between the place where the county site is actually located and any other place in the county. Cheney v. Ragan, 151 Ga. 735, 108 S.E. 30 (1921).

Provision as to five-year period not binding on subsequent legislature.

- Provision relating to the removal of a county seat not oftener than once every five years is not binding on a subsequent legislature and a subsequent legislature would be authorized under the Constitution to pass an Act removing a county site, although the election upon which the Act was based was held within less than five years from a previous election held for that purpose. Orr v. James, 159 Ga. 237, 125 S.E. 468 (1924).

Calling election prima-facie proof of proper petition.

- Calling of the election by the ordinary (now judge of the probate court) determined at least prima facie that the petitioners were of the class and were of a sufficient number as required by the statute for the purpose of calling an election at which the question of the removal of the county site to a named town within the county should be voted upon. Vornberg v. Dunn, 143 Ga. 111, 84 S.E. 370 (1915).

Direction of the petition to "ordinary" (now judge of the probate court) instead of "court of ordinary" will not render the petition void. Vornberg v. Dunn, 143 Ga. 111, 84 S.E. 370 (1915).

Cited in Lee v. Tucker, 130 Ga. 43, 60 S.E. 164 (1908).

C.J.S.

- 20 C.J.S., Counties, § 90 et seq.