Board of Com'rs of City of Manchester v. Montgomery
| Decision Date | 16 April 1930 |
| Docket Number | 7403. |
| Parties | BOARD OF COM'RS OF CITY OF MANCHESTER v. MONTGOMERY et al. |
| Court | Georgia Supreme Court |
Syllabus by Editorial Staff.
Mandamus to compel city commissioners to appoint city manager for city of Manchester need not allege demand on commissioners for performance of duty (Acts 1923, p. 742, § 12).
Acts 1923, p. 742, § 12, provided that commissioners of the city of Manchester shall select and appoint city manager within 30 days after their election and qualification to be administrative head of municipal government.
Demand for performance is not condition precedent to mandamus to compel performance of duty of public nature, where there is no one specially empowered to demand performance.
Public duties should be discharged without waiting for prod of judicial writ.
Demand for performance is unnecessary for mandamus, especially where conduct of officials is equivalent to refusal to perform duty.
Anything showing public officers did not intend to perform duty required by law is sufficient to warrant issuance of mandamus.
Mandamus must allege pecuniary loss to plaintiff uncompensable in damages only where seeking enforcement of private rights.
Mandamus to procure performance of public duty need not show relator has any legal or special interest in result; interest in having laws executed being sufficient.
Mandamus to compel city commissioners to appoint city manager held not inconsistent with prior quo warranto proceedings to test title of commissioner to office of city manager (Acts 1923, p. 742, § § 12).
Mandamus was brought by taxpayers of city of Manchester to compel city commissioners to appoint city manager for city under Acts 1923, p. 742, § 12. Commissioners in their answer alleged that relators had previously in quo warranto proceedings challenged right of one commissioner to act as city manager.
Mandamus requiring city commissioners to appoint city manager held not erroneous for failure to designate person to be appointed and salary to be paid or term of office (Acts 1923, p. 742, § 12).
Mandamus requiring city commissioners to appoint city manager held not erroneous for failure to require giving of bond required by statute (Acts 1923, p. 742, § 12).
Commissioners of city of Manchester having population of over 2,000 inhabitants cannot appoint one of themselves as city manager (Acts 1923, p. 742, § 12; Civ. Code 1910, § 886).
Error from Superior Court, Meriwether County; C. E. Roop, Judge.
Mandamus by J. H. Montgomery and others against the Board of Commissioners of the City of Manchester. Judgment for plaintiffs, and defendants bring error.
Affirmed.
Commissioners of city of Manchester having population of over 2,000 inhabitants cannot appoint one of themselves as city manager. Acts 1923, p. 742, § 12; Civ.Code 1910, § 886.
J. H Montgomery and five other residents and taxpayers of the city of Manchester filed their petition against the commissioners of said city to compel them to select and appoint a city manager for said city under the act of August 20, 1923 (Acts 1923, p. 739). The commission form of government for said city has been in operation since January, 1924. The present members of said board have been in office since January 1926. Said act provides that (Section 12.) The act requires the city manager to give a good and sufficient bond payable to the commissioners and their successors in office, and conditioned to well and truly perform his duties as such manager, the amount of said bond to be fixed by the commissioners and approved by them. No city manager has been selected and appointed by said board at any time since the establishment of the commission form of government for said city.
The defendants demurred to said petition upon the grounds that (1) it fails to set out a cause of action; (2) it is not alleged in said petition that any demand whatever has been made by the plaintiffs or any one else upon the defendants to fill said office and a refusal by them to do so; (3) the petition does not allege that plaintiffs or either of them or any other person whatever has been hurt, injured, or damaged in any manner by reason of the failure of the defendants to fill said office, or that it would be to the interest of plaintiffs, or any other citizen or taxpayer of said city, for defendants to fill said office; (4) the petition fails to mention the time or terms of the office sought to be filled; and (5) plaintiffs are seeking by this proceeding to fill an office which they, as plaintiffs in a quo warranto proceeding, now pending in this court, allege is now filled; and they cannot maintain two wholly inconsistent actions relating to the same subject-matter. Subject to their demurrer, the defendants filed an answer in which they alleged that the duties required to be performed by a city manager of said city have been, and are now being, properly and efficiently performed and discharged; that on June 29, 1929, petitioners brought a quo warranto proceeding against I. H. Davis, alleging that he was then, and had been since January, 1924, acting as city manager, discharging the duties of and holding said office and receiving a salary therefor, which proceeding is now pending in this court; that Davis filed his answer to said quo warranto proceeding, in which he set up the same facts as stated in the answer in this case; and the same is adopted by defendants and made a part of their present answer. They say that the duties required to be performed by a city manager of said city are being properly, efficiently, and economically discharged by Davis, and have been since January, 1924.
No objection or complaint has ever been made by plaintiffs or any one else to the performance of said duties as city manager by him, or to the manner in which said duties have been discharged. Neither plaintiffs nor any other person has in any manner or respect been injured, hurt, or damaged in any way by reason of the performance by Davis of the duties of city manager, but, on the contrary, the citizens and taxpayers of said city have been materially benefited by reason of the efficient and economical way in which Davis has performed such duties. In said quo warranto proceeding it was alleged that Davis had been performing the duties of said office as city manager since January, 1924, and plaintiffs prayed that his right to hold the office of city manager be inquired into. Defendants say that, so long as said quo warranto proceeding is pending, the plaintiffs cannot maintain the mandamus proceeding.
On the trial of said cause, the defendants offered in evidence their affidavit in which they depose that no demand has ever been made upon them or either of them that any person be selected or appointed by said board as city manager, and that said board has never refused to comply with any request made upon it to select and appoint a city manager for said city. The pleadings in said case were offered in evidence by counsel for both parties, together with the quo warranto proceeding above referred to. In the quo warranto petition it is alleged that under the act creating the commission form of government for said city an individual could not be both a city commissioner and a city manager, as the offices of city manager and that of city commissioner are incompatible under said act. It is further alleged that Davis has been since January, 1924, acting as city manager, "discharging the duties of and holding said office, and receiving a salary therefor, although during said period he had been and was then holding the office of city commissioner." In answer to the quo warranto proceeding defendant set out an ordinance adopted by the board of commissioners of said city on March 17, 1924, providing for the selection and appointment of "an acting city manager for the City...
To continue reading
Request your trial