166 Ga. 781 | Ga. | 1928
■ Dr..Marion Benson and six other physicians, as citizens and taxpayers of the City of Atlanta, and as members of the executive committee of the medical staff of Grady Hospital, brought a quo warranto proceeding against Dr. Joseph H. Hines and five other physicians, who claim to be members of said executive committee by reason of an election held in March, 1928, by the hospitals and charities committee of the general council of Atlanta, to test the right and title of respondents to the positions claimed by them. The respondents demurred to the petition, upon the. ground that it set. forth no cause of action, for the reason that memberships on said committee do not constitute offices the title to which can be tested by a quo warranto proceeding. The trial judge sustained the demurrer, and the relators excepted.
The writ of quo warranto is the proper remedy 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. Civil Code, § 5451. This section has been construed by this court to confer the right upon a claimant to test title to a private office. Hussey v. Gallagher, 61 Ga. 86, 91; Harris v. Pounds, 64 Ga. 121; McCarthy v. McKinney, 137 Ga. 292 (73 S. E. 394). “Quo warranto. will not lie to try title to an office not shown to have a legal existence.” 32 Cyc. 1422 c; 22 R. C. L. 663, 664, § 5 ; Hedrick v. People, 221 Ill. 374, 77 N. E. 441. Clearly, membership on such committee does not constitute a private office. Such position is a public office, if
It is not contended, and it is not true, that this committee was created by the constitution, or any statute, or by any ordinance passed in pursuance of legislative authority. Counsel for the relators concedes that the charter of the city is silent upon this subject. It follows that persons who claim to be members of this committee, and who are exercising the powers of such members, do not occupy official positions, and are not exercising powers attached to public office; and they can not be proceeded against by the writ of quo warranto to test their title to such public offices, as no such offices legally exist. It is unnecessary for us to' decide the státiis
Judgment affirmed.