Collins v. Nix, s. 46843
| Decision Date | 21 February 1972 |
| Docket Number | No. 1,46844,Nos. 46843,s. 46843,1 |
| Citation | 125 Ga.App. 520,188 S.E.2d 235 |
| Parties | Eugene COLLINS v. Raymond C. NIX et al. Raymond C. NIX et al. v. Eugene COLLINS |
| Court | Georgia Court of Appeals |
Robinson, Buice, Harben & Strickland, B. Carl Buice, Gainesville, for appellant.
Telford, Stewart & Stephens, J. Douglas Stewart, Gainesville, for appellees.
Syllabus Opinion by the Court
This is a declaratory judgment proceeding brought for the primary purpose of determining the proper manner of filling vacancies on the board of the Union County Hospital Authority.
On December 28, 1956, appropriate resolutions were adopted by the local governing bodies creating the Hospital Authority pursuant to the Hospital Authorities Law of 1941 (Ga.L.1941, p. 241), which was then in effect. The creating resolution provided that vacancies on the board of the Authority should be filled by election and appointment by the remaining members of the board.
The Hospital Authorities Law of 1964, contained in the new Georgia Health Code (Ga.L.1964, pp. 499, 598; Code Ann. Ch. 88-18) repealed and superseded the 1941 Act (Ga.L.1964, pp. 650, 656(59)) and provided that for new Hospital Authorities activated on or after March 15, 1964, each vacancy would be filled by action of the board in selecting one member from a list of three eligible persons submitted to the board by the governing body of the area of operation. Ga.L.1964, pp. 499, 600; Code Ann. § 88-1803. As to authorities which had been in existence prior to March 15, 1964, the new law provided as follows: Ga.L.1964, pp. 499, 600; Code Ann. § 88-1803.
The difficulty giving rise to the present litigation is that the board continued to fill vacancies in accordance with the original method established by the creating resolution under the 1941 act, but it was not until June 1, 1971, that the board formally adopted and filed with the governing authority a resolution providing that vacancies would be filled in the same manner as they had been filled prior to the approval of the 1964 act. The resolution reads as follows: 'Whereas, upon the approval of (Ga.L.1964, pp. 499, 598) the Board of Union County Hospital Authority elected to have vacancies on such board filled in the same manner as such appointments were made prior to the approval of such Act, but no formal resolution to that effect has been entered on the minutes of said Board, and Whereas, vacancies on such board have continued to be filled in the same manner as such appointments were made prior to the approval of such Act, Now, Be It Resolved by the Board of Union County Hospital Authority that vacancies on such board be filled in the same manner as such appointments were filled prior to the approval of such Act.'
Hence the primary issue revolves around the failure of the board to elect by formal resolution prior to May 1, 1964, whether vacancies would be filled in accordance with the procedure set forth in the 1964 Act or in accordance with the original procedure. The trial court, in its order ruling on the various motions for summary judgment, held that from the effective date of the 1964 Act until June 1, 1971, when the resolution was formally adopted, the Authority was obligated to fill vacancies in accordance with the procedure set forth in the 1964 Act, so that the appointments of board members Griffin, Foster and Phillips, having been made under the original procedure between the effective date of the 1964 Act and June 1, 1971, were invalid; however, the court further held that the requirement of the 1964 Act that the board must make its election as to the appointment procedure prior to May 1, 1964, was directory only, rendering valid and binding the resolution adopted on June 1, 1971 so that the proper manner of appointment after that date was the original procedure rather than that set forth in the 1964 Act. All portions of the above rulings are enumerated as error in either the main appeal or cross appeal. Held:
1. It appears clear to us from the fact that vacancies were filled both before and after the 1964 Act in accordance with the original procedure, and from the wording of the formal resolution of June 1, 1971, set out above, that the board resolved to have vacancies filled in the same manner as obtained prior to the 1964 Act. The portion of the 1964 Act requiring an election by resolution as to the appointment procedure prior to May 1, 1964, contains no negative words restraining the doing of it afterwards; it does not declare what results shall follow upon noncompliance; and no injury appears to have resulted from the failure timely to adopt and file the resolution. The requirement that the election be made by timely, formal resolution and filed with the governing authority would appear to apply with greater force to an election to adopt the appointment procedure of the 1964 Act than to a retention of the original procedure-in the former instance the governing body of the area of operation must be put on notice of its duty to submit to the board a list of three eligible persons for each vacancy, while if the original procedure is retained there is no function for the governing body to perform with respect to vacancies on the board. Under these circumstances it is our view that the actions of the board, both in continuing to appoint members under the original procedure and in later formally adopting the resolution retaining the original procedure, must be upheld.
'A substantial compliance with any requirement of the Code, or laws amendatory thereof, especially on the part of public officers, shall be deemed and held sufficient, and no proceeding shall be declared void for want of such compliance,...
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