Churchill v. Walker

• Decision Date: 28 February 1882
• Parties: Churchill et al. vs. Walker et al.
• Court: Georgia Supreme Court

68 Ga. 681

Churchill et al. vs. Walker et al.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1882.

Practice in Supreme Court. Officers. Actions. Count] Matters. Constitutional Law. Before Judge fleming Mcintosh Superior Court. July Term, 1881.

Reported in the decision.

Jno. L. Harden; H. M. Law, by E. F. Hoge, for plaintiffs in error.

Lester & Ravenel; Tompkins & Denmark; W. R. GIGNILLIAT, for defendants.

Speer, Justice.

The record discloses that at an election held on the 20th of April, 1881, the plaintiffs in error were elected to the offices of mayor and aldermen of the city of Darien.

As such officials elect they filed their petition in the superior court of Mcintosh county, asking leave to file an information in the nature of a quo warranto against James Walker and others, defendants in error, who have been, and still are, exercising the powers of mayor and aldermen of the city of Darien under the acts of the general assembly of 1871 and 1876, creating the board of county commissioners. Petitioners allege that said acts, so far as they intended to confer corporate powers over the municipality of Darien on said board of commissioners, were unconstitutional and void. That the charter of the city of Darien never having been repealed, plaintiffs in error were entitled to hold and exercise the office of mayor and aldermen of said city of Darien under and by virtue of their election aforesaid.

Plaintiffs in error further by their petition claim that, as residents and citizens of said city, they were interested in the good government of the same, and that outside of their interest as officers elect, and apart and distinct from the same, this latter interest was sufficient to entitle them to have leave to file information, and to prosecute the same to inquire into the authority and warrant by which the defendant in error claimed to exercise the office of mayor and aldermen of said city of Darien.

To this petition the defendants in error filed their demurrer on various grounds as set forth in the record. On calling up the demurrer, counsel for plaintiffs in error moved to strike therefrom so much as raised issues of fact, which motion the court sustained and also granted leave to file information. The order granting leave accorded todefendants in error the privilege of filing a demurrer to petition after filing the information. The information was filed accordingly with allegations similar to those of the petition, and the writ was issued and served upon defendants in error. A demurrer was then filed within five days by the defendants after the service of the writ upon them, on the following grounds:

(1.) That the information was not filed at a term of the court.

(2.) Because respondents were called upon to answer within five days after service of information and writ upon them.

(3.) That there is no writ of quo warranto.

(4.) No sufficient allegations showing the right of relators to hold the offices claimed.

(5.) That the allegations are not sufficient for the court to pass judgment upon.

(6.) Relators have no right to the offices claimed.

(7.) There is no law authorizing an election for mayor and aldermen of the city of Darien.

(8.) Respondents are the only persons authorized to exercise the powers of mayor and aldermen of the city of Darien.

(9.) Relators show no interest in the offices claimed.

(10.) The allegations are not sufficient to warrant a judgment of ouster.

(11.) That relators cannot jointly maintain this action.

(12.) Relators do not show for what length of time nor for what terms they have been elected.

On hearing the demurrer, the court sustained the same, and ordered the writ of quo warranto to be dismissed, which is excepted to and assigned as error.

1. As to the motion to dismiss this writ of error because the state is not a party to the same, we have to say that we think, as the information is filed by the solicitor general as the officer of the state in the Eastern judicial circuit, and for the state, and could be filed in no othername but that of the state, we cannot see that the state was not a necessary party here. It is not a party, because its officer does not sign the bill of exceptions for the state. nor do other counsel as representatives of the state. But as we think it best to dispose of the case on the merits we will pass upon the other points.

2, 3. It is insisted that, as the alleged official terms of the relators to the office of mayor and aldermen of the city of Darien expired in November last, and by virtue of which they sought the issuing of this writ of quo warranto, this court should not proceed further, as the relators could not have a judgment of ouster against respondents and of induction for themselves. It is true that this court, in the case of Morris vs. Underwood, 19 Ga., 559, held, " The title to an office will not be tried when the term has expired, and no judgment of ouster can be pronounced." But it must be observed that these relators apply for this writ not only as claimants to the offices in controversy, but they also claim as resident citizens of said city of Darien, apart and independent of their claim as officers elect. " The writ of quo warranto may issue 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." Code, §3203.

It is clear, from this provision of the Code, that persons other than the contesting claimant to the office may apply for the issuance of this writ. Are not resident citizens of a municipality interested in the offices through which the civil government of the city is administered? Are they not interested in having such offices legally filled, honestly and impartially administered? These offices are created by law for the benefit and convenience of the citizens, and if any usurper should assume their duties, can redress be had only through a contestant claimant We think not. We think the right of a citizen, as such, to seek the services of this writ, is impliedly recognized bythis court in the case of Hardin vs. Colquitt, 63 Ga., 588. The court there said, "The claimant of an office controverting an actual incumbent, though he cannot be heard by quo warranto to attack the legality of the election without alleging an interest in the office as a citizen 0r otherwise, may nevertheless have a hearing upon such part of the case made as involves the question of whether he or the incumbent received a majority of the legal vote.\'\' The court said further, "Had the relator averred himself to be a resident of the district, and thereby interested in the office, both branches of the petition could have...