O'Neal v. Spencer

• Docket Number: 16165.
• Decision Date: 16 April 1948
• Parties: O'NEAL et al. v. SPENCER.
• Court: Georgia Supreme Court

47 S.E.2d 646

203 Ga. 588

O'NEAL et al. v. SPENCER.

No. 16165.

Supreme Court of Georgia

April 16, 1948

Lawrence J. Dwyer, Robert E. Falligant, both of Savannah, and Marvin O'Neal, Jr., of Atlanta, for plaintiffs in error.

Fred B. Davis and John C. Wylly, both of Savannah, for defendant in error.

Syllabus Opinion by the Court.

CANDLER Justice.

Marvin O'Neal and others, as citizens and taxpayers of the City of Savannah, filed a proceeding in the nature of a quo warranto to inquire into the right of Frank W. Spencer to hold office as a member of the Board of Public Education for the City of Savannah and Chatham County. Briefly the petition alleged: The appointment of Captain Spencer was null and void, because section 2 of the act of 1933, Ga.L.1933, p 1067, under which he was appointed by the Mayor and Council of the City of Savannah provides: 'That during the last thirty-day period preceding the expiration annually of the terms of office of two members of said board, the successors to said two members shall be chosen as follows: The Mayor of the City of Savannah shall submit a nomination or nominations to the City Council of Savannah, and said City Council shall elect from the nomination or nominations thus submitted, one member of said board of public education for a term of six years.' The period during which he could have been legally appointed was the thirty days immediately preceding December 31, 1947, but the appointment was made November 28, 1947. The exception here is to a judgment sustaining a general demurrer, which assailed the petition for failing to state a cause of action for the relief prayed. Held:

1. 'A substantial compliance with any reqquirements 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, unless expressly so provided by the enactment.' Code, § 102-102(6).

2. The judge did not err in sustaining the general demurrer when he applied to the allegations of the petition in the instant case the principle of law announced in Horkan v Beasley, 11 Ga.App. 273, 75 S.E. 341; Spencer v Columbus, 150 Ga. 312, 314, 103 S.E. 464; Perkins v Norristown School District, 151 Ga. 414, 107 S.E. 42; Willcox v. Beechwood Band Mill Co., 166 Ga. 367, 143 S.E. 405; and City of Rome v. Rigdon, 192 Ga. 742, 746, 16 S.E.2d 902. The rule as announced in ...