Altman v. Taylor

• Decision Date: 14 March 1934
• Docket Number: 10075.
• Citation: 173 S.E. 828,178 Ga. 689
• Parties: ALTMAN v. TAYLOR.
• Court: Georgia Supreme Court

173 S.E. 828

178 Ga. 689

ALTMAN v. TAYLOR.

No. 10075.

Supreme Court of Georgia

March 14, 1934

Error from Superior Court, Bacon County; M. D. Dickerson, Judge.

Petition for quo warranto by J. T. Altman against G. A. Taylor. To review a judgment denying his petition, plaintiff brings error.

Affirmed.

Altman filed against Taylor a petition for the writ of quo warranto the purpose being a determination of the rights of the respective parties to the office of county school superintendent of Bacon county. Altman based his claim of title to the office on the following allegations: Taylor held the office of county superintendent of schools of Bacon county from January 1, 1915, to June 31, 1924. In 1924 and again in 1928 J. T. Altman was elected to the office, and duly qualified and was installed therein. In the primary election of 1932 Taylor and Altman were candidates for the office. Taylor received a majority of the votes cast. In the general election following Taylor received all except 12 or 15 votes, which were cast for Altman. Taylor gave bond, took the oath, and undertook to enter upon the discharge of the duties of the office. Altman thereupon filed against Taylor a petition for the writ of quo warranto, alleging that Taylor was disqualified from holding the office, because at the time of the general election of 1932 he was not a qualified voter for the reason that he had not, six months before such election, paid all state and county taxes due by him which he had had an opportunity to pay agreeably to law, in that he had not paid state and county taxes, including poll taxes due by him for the year 1928, until June 9, 1932; also because he had failed and refused to pay over and account for a named sum of public school funds and moneys received by him during the time he held the office from January 1, 1915 to June 31, 1924. The result of that quo warranto proceeding, in both the superior court and this court (Taylor v Aultman, 177 Ga. 524, 170 S.E. 355) was favorable to the contention of Altman. After January 1, 1933, Altman filed bond in the manner provided by law, his contention being that by virtue of his previous elections and by virtue of the votes received by him in the election of 1932, under the ruling in Pearson v. Lee, 173 Ga. 496, 160 S.E. 369 he was the duly elected superintendent for the term of four years beginning January 1, 1933. Under the provision of the act of the General Assembly quoted hereafter, the clerk of Bacon superior court undertook to call an election to fill an alleged vacancy in the office of county superintendent of schools. Taylor was the only candidate, and received the only votes cast. After the election of Taylor the board of education refused to recognize any right in Taylor to fill the office, and refused to approve the bond offered by him. Taylor then procured from the ordinary of the county an order under the Civil Code, § 304 et seq., requiring Altman to surrender to Taylor the office, books, and records. Accordingly Taylor took charge, and was assuming to act and performing the duties of the office. The petition alleged that this action on his part was an illegal and unauthorized usurpation of said office, and illegally and unlawfully deprived Altman of his rights therein specifically for the reasons: (1) That by the decree in the previous suit between the same parties it was adjudged that Taylor was disqualified from holding the office; (2) that the act of 1933 (Laws 1933, p. 129) was not retroactive, had no application to the status of Altman under the elections of 1932 and previous elections, did not authorize the clerk to call an election to fill any alleged vacancy, and did not have the effect of creating a vacancy when under the law as it stood at the time of the election of 1932 and at the time of the passage of said act no vacancy existed in said office, and Taylor acquired no right to hold the office by virtue of the election called under the act of 1933; (3) that Taylor has not given bond as provided by law; (4) that the order of the ordinary under which Taylor was acting was illegal and void, because Altman was not given reasonable notice, and because the action of the ordinary in setting the matter for hearing on the same day it was filed, and without even one day's notice to Altman, was arbitrary, illegal, and void. The petition was amended by striking the allegation that Taylor was the holder of public funds.

The respondent demurred on the grounds that the petition did not set forth a cause of action; and that this proceeding is an attempt to contest an election by quo warranto, and there is no authority of law for so doing. The...