Geeslin v. Opie

• Decision Date: 07 May 1964
• Docket Number: No. 22437,22437
• Parties: Albert F. GEESLIN v. Lena H. OPIE et al.
• Court: Georgia Supreme Court

Page 720

136 S.E.2d 720

220 Ga. 53

Albert F. GEESLIN v. Lena H. OPIE et al.

No. 22437.

Supreme Court of Georgia.

May 7, 1964.

Rehearing Denied May 19, 1964.

Syllabus by the Court

1. The respondent's term of office as City Clerk of the City of Dublin had expired

so as to authorize the election of a successor.

2. The purported veto by the mayor did not affect the election of a successor for that office by the board of aldermen.

3. In view of 1 and 2, above, the trial court properly overruled the respondent's demurrers and held that the relator was entitled to the office.

Al. Hatcher, H. Dale Thompson, James F. Nelson, Aretha M. Smith, E. L. Stephens, Jr., Dublin, for plaintiff in error.

Jones & Douglas, Paul J. Jones, Jr., Dublin, for defendants in error.

GRICE, Justice.

The right to hold the office of City Clerk of the City of Dublin is for determination here.

The litigation began when Mrs. Lena H. Opie and four members of the Board of Aldermen of the City of Dublin presented to the Judge of the Superior Court of Laurens County an application for leave to file an information in the nature of a quo warranto against Albert F. Geeslin. Leave was granted and the information was filed.

The information alleged the material facts which follow. The relator Mrs. Opie was duly elected city clerk by the mayor and board of aldermen at a regular meeting on January 20, 1964. The respondent Geeslin is performing the duties of city clerk and is claiming that office, without any legal authority. The mayor and board of aldermen, at the first regular meeting of 1964, on January 6, elected Ed Hilliard as city clerk, but he resigned without taking the required oath, giving the required bond or performing any duties of the office. At the next regular meeting, on January 20, 1964, the mayor and board of aldermen accepted Hilliard's resignation and elected the relator Mrs. Opie as clerk. She is, by virtue of these facts, the legal and lawful holder of such office, and the respondent Geeslin is wholly without any authority to hold that office and perform its duties. The prayers were that process issue, that the relator Mrs. Opie be declared the rightful holder of the office of city clerk, and for general relief.

To this information the respondent Geeslin demurred generally, that it does not set forth a cause of action and that it shows on its face that the relator is not entitled to the relief sought, and specially, that it does not allege a vacancy in the office of city clerk and does not show by what authority the relator claims to have been elected. The respondent also filed a denial to the information.

Upon the hearing in response to a rule nisi, the parties agreed for the trial judge, without a jury, to determine the issue in accordance with stipulated facts. These facts, insofar as material, may be summarized as follows.

Mr. Geeslin was elected city clerk at the first meeting of the mayor and aldermen for 1962, has performed the duties of that office since that time and is still performing such duties.

At the first regular meeting of the mayor and aldermen for 1964, Mr. Hilliard was nominated to the office of city clerk and received four 'yes' votes and two 'no' votes. On January 9, 1964, the mayor filed his written veto to the nomination of Mr. Hilliard. No action was taken by the board of aldermen of this veto. On January 20, 1964, Mr. Hilliard resigned, without having qualified, performed any duties, or given and bond.

Thereafter, on January 20, 1964, Mrs. Opie was nominated for the office of city clerk and received four 'yes' votes and two 'no' votes. Subsequently, on January 22, 1964, the mayor filed his written veto to her nomination, stating his reasons therefor. No action was taken by the board of aldermen on this veto.

On January 21, 1964, Mrs. Opie took her oath of office. She made application for bond with a named concern on January 22, 1964, but it has not yet been received by her or the City of Dublin.

At all times herein there have been six aldermen and a mayor, comprising the Mayor and Board of Aldermen of the City of Dublin.

The mayor and board of aldermen have not, during 1964, prescribed any oath or bond for the City Clerk of Dublin.

Following the hearing on the rule nisi, the trial judge entered an order holding that Mrs. Opie is the lawful city clerk, that Mr. Gesslin is illegally holding such office, and ordering him to vacate and deliver the same to her. Also, he overruled the respondent's demurrers to the information.

Those two rulings are assigned as error.

Consideration of these assignments involves two questions. Had the term of Mr. Geelsin expired so as to authorize the election of a successor? If so, did the mayor's purported veto nullify the election of Mrs. Opie?

The answers to these questions depend primarily upon construction of certain provisions of the charter of the City of Dublin (Ga.L.1937, p. 1771, as amended by Ga.L.1943, p. 1397; Ga.L.1952, p. 2516; and Ga.L.1961, p. 2598).

1. As to whether Mr. Geeslin's term had expired so as to authorize Mrs. Opie's election, we view the 1952 amendment, supra, as controlling. It amended the city's charter to provide Article II, Section 19, as follows: 'There shall be a * * * city clerk * * *. These officers shall serve for one year and until their successors are elected and qualified * * *' (Ga.L.1952, pp. 2516, 2517) and Article II, Section 20: '* * * the mayor and board of aldermen of said city shall, on the first Monday of January, 1953, and every year thereafter elect * * * a city clerk * * *' (Ga.L.1952, L.1952, pp. 2516, 2518). (Emphasis ours.)

These provisions, prescribing an annual term for the city clerk and requiring election for that office on the first Monday in each year, were not repealed by the 1961 amendment, supra, so as to make the term a permanent one except for death, resignation or discharge for cause, as contended by respondent. The purpose of the 1961 Act was the establishment of a city manager form of government.

That Act did not purport to expressly repeal any prior charter provisions as to the city clerk's term or election. The only mention of the position of city clerk is that 'At the first meeting of the mayor and board of aldermen after this Act becomes law * * * they shall choose a city manager * * * a city clerk * * *. The clerk and the treasurer may be the same * * *' Ga.L.1961, p. 2598.

Nor was there any implied repeal of such prior provisions. As indicated above, the 1961 Act is silent as to the term of the city clerk or the dates for the election to that office. Instead of conflict, there is complete harmony between that Act and the 1952 Act, supra. In this connection, the rule is 'Repeals by implication are not favored, and result only where the later of two acts is clearly repugnant to the former and so inconsistent with it that the two cannot stand together, or where it is manifestly intended to cover the same subjectmatter of the former and operate as a substitute for it that such a repeal will be held to result. The intention to repeal must be plain and unmistakable.' State Board of Education v. County Board of...