Butner v. Boifeuillet

Decision Date29 March 1897
Citation28 S.E. 464,100 Ga. 743
CourtGeorgia Supreme Court

Syllabus by the Court.

1. The repeal of certain provisions incorporated in the charter of a municipal corporation, which are enacted in the course of a legislative revision and restatement of prior charter provisions bearing upon the same general subject, and expressed in substantially the same language, does not of itself operate as a revival of the same or similar provisions of the prior charter. Upon the repeal of the revising statute, the re-enactment of such provisions was necessary to restore their force at law.

2. Where, by the provisions of such revising statute, an office existing under the prior statute was recognized and recreated, and thereafter such provisions of the revising statute were in turn repealed, the effect of such repeal was to abolish the office, and this is true notwithstanding the repealing act in terms re-enacted certain other provisions of the same section of the charter by which the office abolished was created, and provided for the election by the municipal authorities of another officer corresponding in title with that of the incumbent of the office which had existed under the repealed statute.

3. The act to amend the charter of the city of Macon in certain specified particulars, and for other purposes, approved December 11, 1896, in so far as it deals with the office of chief of police for that city, does not contravene that provision of the constitution of this state which prohibits the passage of an act by the general assembly containing matter variant from that expressed in the title.

4. The act in question repeals so much of the act approved November 21, 1893, as creates a new charter for the city of Macon, and as establishes the office of chief of police as a distinctive office, and, as a consequence, that particular office, as it theretofore existed under that and previous charters of the city of Macon, was abolished, and the right of the relator to exercise its functions under an election had in pursuance of that and the previous charters of such city was extinguished. The title of the relator to the office which he seeks having been extinguished by the repeal of the law creating the office, the court did not err in refusing to allow the information quo warranto to be filed.

Error from superior court, Bibb county; W. H. Felton, Jr., Judge.

Petition by T. M. Butner for leave to file an information in quo warranto against J. T. Boifeuillet. From an order denying the petition, plaintiff brings error. Affirmed.

Estes & Jones, for plaintiff in error.

Minter & Wimberly, Dessau, Bartlett & Ellis, and Robt. Hodges, for defendant in error.


The plaintiff in error filed a petition praying permission to file an information against the defendant, and that the writ quo warranto do issue to inquire upon what authority he was exercising the duties of the office of chief of police of the city of Macon. The petitioner alleged that on December 16 1895, he was duly elected to the office of chief of police of said city, and qualified as such; that the term for which he was elected was two years next ensuing the date of his election; that upon qualifying he entered upon the discharge of his duties, and continued to perform them until December 31, 1896, and that, notwithstanding his rights in the premises, the defendant, on the date last named, usurped, and thenceforth held, and continued to exercise, the duties of the office of chief of police of the city of Macon, denying to the petitioner the right to enjoy the office in question. The defendant answered, denying that the plaintiff had a legal title to this office. The election of the plaintiff in error, and his qualification, as stated in the petition were admitted, but it was insisted that subsequent to his election the general assembly, by an act approved December 11, 1896, had repealed the provisions of the charter of the city of Macon under and by virtue of which the plaintiff was elected chief of police, and had thereby abolished the office of chief of police, thus extinguishing whatever title plaintiff may have had to that office; and that by virtue of an election held subsequent to the act above mentioned the defendant held the office of chief of police, as recognized and created by the terms of that act. Upon the hearing the trial judge had before him the provisions of the various acts incorporating the city of Macon, which will be hereafter referred to; certain other documentary evidence, showing the adoption by popular vote of the provisions of the act of 1896, in so far as they applied to the office of chief of police and the police commission of the city, and likewise showing the action of the mayor and council in electing the defendant to the office, the duties of which he was then, and is now exercising. The trial judge reached the conclusion that the plaintiff had not prima facie established a title to the office by the terms of his petition, and therefore denied to him the right to file the information as prayed. To this judgment of the presiding judge, the plaintiff excepted, and we are now to consider whether error was committed.

1, 2. To a correct understanding of the questions made in this case it will be necessary to state in some detail the history of the legislation by which charter powers have been conferred upon the city of Macon. Prior to the year 1871 the original charter of the city of Macon had undergone many changes in consequence of the passage, from time to time, of acts by the general assembly modifying and enlarging the powers conferred upon that municipal corporation. By an act approved December 11, 1871, however, the general assembly enacted a statute which was entitled "An act to amend an act entitled 'An act to alter and amend the several acts incorporating the city of Macon,' approved December 27th, 1847, and the several acts amendatory thereto; to grant additional powers to the mayor and council of the city of Macon, and for other purposes." By that act the office of chief of police was established as a distinctive municipal office, his title resting upon direct and express legislative action, which prescribed the duties of his office, provided for the manner of his election, and fixed his term. That act prescribed, in terms: "That a chief of police, who shall be ex officio marshal of said city, shall be elected by said mayor and aldermen at their first meeting after said election, or within two weeks thereafter. The term of said chief of police shall be the same as that for which said mayor and aldermen are elected, and he shall give a bond with two or more good securities in the sum of ($15,000.00), fifteen thousand dollars, for the faithful performance of his duties as chief of police and marshal of the city of Macon. He may be dismissed at any time by the vote of a majority of the members of the council for malpractice in office, neglect of duty, drunkenness or other improper conduct, to be judged of by the council, and in this event, a successor shall be elected to fill his unexpired term. In case of the resignation, removal, death or disability of the chief of police, the police officer of said city next in rank, shall perform the duties of said officer until the removal of said disability, or until a successor shall have been elected to fill the unexpired term." Acts 1871-72, p. 119. By an act approved November 21, 1893, the general assembly, in more comprehensive terms than had been theretofore employed in any of the previous acts respecting the city of Macon, granted a new charter to it. The act then passed was entitled "An act to create a new charter for the city of Macon, to consolidate the acts relating to the rights and powers of said corporation, and for other purposes," and at its conclusion provided "that all laws and parts of laws in conflict with this act be, and the same are, hereby repealed." By the thirty-second section of that act it was provided: "That the police force of the city shall consist of a chief of police, two lieutenants and such other officers and men as the mayor and council may by ordinance prescribe. The term of office of the chief of police and the two lieutenants shall be for two years, but such officers shall be subject to removal, as hereinbefore provided." It created a board of police commissioners, who were authorized to elect the police officers, including the chief of police, whose office was created by the terms of that act. Acts 1893, p. 240. On the 11th day of December, 1896, the general assembly passed still another act, which was entitled "An act to amend the charter of Macon, relating to the law now governing the board of public works, the police commission, the fire commission; to provide for deficiencies in the revenue of the city; to provide for compensation of the board of health; and giving authority to the mayor and council providing for the paving of streets, alleys and sidewalks of said city, and for other purposes." By the terms of that act, the general assembly repealed section 32 of the act of 1893, providing, however, that before the repealing statute should become operative, the...

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1 cases
  • Butner v. Boifeuillet
    • United States
    • Georgia Supreme Court
    • 29 Marzo 1897
    ...28 S.E. 464100 Ga. 743BUTNERv.BOIFEUILLET.Supreme Court of Georgia.March 29, 1897. Statutes—Repeal—Effect—Revival — Title of Act—City Charter—Officers. 1. The repeal of certain provisions incorporated in the charter of a municipal corporation, which are enacted in the course of a legislativ......

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