Mcdonough v. Bacon

• Decision Date: 10 March 1915
• Docket Number: (No. 260.)
• Citation: 143 Ga. 283,84 S.E. 588
• Parties: McDonough et al. v. BACON et al.
• Court: Georgia Supreme Court

84 S.E. 588

143 Ga. 283

McDonough et al.

v.BACON et al.

(No. 260.)

Supreme Court of Georgia.

March 10, 1915.

(Syllabus by the Court.)

Error from Superior Court, Chatham County; W. G. Charlton, Judge.

John J. McDonough and another presented an application for leave to file a petition in the nature of quo warranto against Oliver T. Bacon and others. Prom a judgment refusing leave, petitioners bring error. Affirmed.

John J. McDonough and W. W. Aimar, alleging that they were citizens and taxpayers of Chatham county, presented to the judge of the superior court an application for leave to file a petition in the nature of a writ of quo warranto against Oliver T. Bacon and others, constituting the board of commissioners of Chatham county. The application was accompanied by an information which contained three counts, in each of which it was alleged that the commissioners had forfeited their office, and prayed that they might be removed therefrom. The first count was based upon an alleged violation of section 393 of the Civil Code, which contains, among other things, a prohibition against the making of certain purchases, under circumstances in said section specified, by any county commissioner or board of county commissioners. The second count was based upon an alleged violation of sections 387-389 of the Civil Code, and charges that the commissioners had themselves executed public works costing more than $300, instead of having the work done by contract, and this was alleged to constitute malpractice and misconduct in office. The third count charged that, without contract in writing entered on their minutes, the commissioners had authorized the payment of certain sums of money from the county funds. The judge refused leave to file the application and information, and declined to issue a rule to show cause why leave should not be given to file such proceedings, holding that quo warranto was not the remedy in regard to the matters complained of in the application. This judgment was excepted to by petitioners.

Geo. H. Richter, of Savannah, for plaintiffs in error.

Anderson, Cann & Cann, of Savannah, for defendants in error.

BECK, J. (after stating the facts as above). [1, 2] We are of the opinion that the court correctly held that the petitioners, the plaintiffs in error here, were not entitled, upon the petition presented, to leave to file an information in the nature of a writ of quo warranto against the defendants. Section 5451 of the Civil Code reads:

"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."

But the writ of quo warranto is not the remedy to oust one holding an office who has been elected and inducted therein. There is no denial in the petition or the information that the defendants were duly elected and inducted into the...