Benson v. Hines, (No. 6627.)

• Decision Date: 16 August 1928
• Docket Number: (No. 6627.)
• Citation: 166 Ga. 781,144 S.E. 287
• Parties: BENSON et al. v. HINES et al.
• Court: Georgia Supreme Court

166 Ga. 781

144 S.E. 287

BENSON et al.

v.HINES et al.

(No. 6627.)

Supreme Court of Georgia.

Aug. 16, 1928.

(Syllabus by the Court.)

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Office.]

Error from Superior Court, Fulton County; E. D. Thomas, Judge.

Quo warranto proceeding by Dr. Marion Benson and others against Dr. Joseph H. Hines and others to test title to membership on executive committee of the medical staff of Grady Hospital. To review a judgment sustaining a demurrer to the petition, plaintiffs bring error. Affirmed.

Branch & Howard, of Atlanta, for plaintiffs in error.

Horace Russell, Key, McClelland & McClelland, and Hewlett & Dennis, all of Atlanta, for defendants in error.

HINES, J. Dr. Marion Benson and six other physicians, as citizens and taxpayers of the city of Atlanta, and as members of the executive committee of the medical staff of Grady Hospital, brought a quo warranto proceeding against Dr. Joseph H. Hines and five other physicians, who claim to be members of said executive committee by reason of an election held in March, 1928, by the hospitals and charities committee of the general council of Atlanta, to test the right and title of respondents to the positions claimed by them. The respondents demurred to the petition, upon the ground that it set forth no cause of action, for the reason that memberships on said committee do not constitute offices the title to which can be tested by a quo warranto proceeding. The trial judge sustained the demurrer, and the relators excepted.

The writ of quo warranto is the proper remedy to inquire into the right of any person to any public office, the duties of which he is in fact discharging, but must be granted at the suit of some person either claiming the office or interested therein. Civil Code, § 5451. This section has been construed by this court to confer the right upon a claimant to test title to a private office. Hussey v. Gallagher, 61 Ga. 86, 91; Harris v. Pounds, 64 Ga. 121; McCarthy v. McKinney, 137 Ga. 292, 73 S. E. 394. "Quo warranto will not lie to try title to an office not shown to have a legal existence." 32 Cyc. 1422, c; 22 R. C. L, 663, 664, § 5; Hedrick v. People, 221 111. 374, 77 N. E. 441, 5 Ann. Cas. 690. Clearly, membership on such committee does not constitute a private office. Such position is a public office, if it is an office at all. Public office, within the meaning of the above section of the Code, means an office which has been lawfully created. Such an office must be created by the Constitution, by some statute, or by municipal ordinance passed in pursuance of legislative authority. In Collier v. Elliott, 100 Ga. 363, 28 S. E. 117, it was held that the commissioners of roads and revenues of Fulton county could not establish a board of county police, charged with the duty of making arrests, or otherwise enforcing the criminal laws of this state, because there was no law authorizing these...