184 Ga. 806 | Ga. | 1937
On March 22, 1937, the commissioners of the City oE Gainesville, at a regular meeting and in the manner provided by the charter, unanimously elected Johnson as recorder for two 3'ears commencing April 1, 1937. Johnson as relator brought this quo warranto proceeding. The election was recorded on the minutes, a copy of which was published on March 25, 1937, in a city newspaper. On March 31, 1937, at a meeting the minutes of Which recited that the person previously elected
1. Where, as in the instant case, the charter of a municipality creates a public office with a fixed term, and provides for an election of the officer by the city commissioners, aiid for his removal only upon written charges and a public hearing after furnishing to him a copy of the charges and giving him notice, the commissioners can not, after he has been legally elected, discharge or remove him except as thus provided. City of Macon v. Bunch, 156 Ga. 27 (1, b), 29 (118 S. E. 769); Mayor &c. of Savannah v. Grayson, 104 Ga. 105, 114 (30 S. E. 693); City of Nashville v. Whitley, 53 Ga. App. 587 (186 S. E. 717); Burney v. Boston, 24 Ga. App. 7 (100 S. E. 28). The present charter of the City of Gainesville creates the office of recorder for the trial and punishment of offenders, and provides for the election of such officer by the city commissioners for a term of two years, and for his “removal at any time by a vote of the majority of the commission,” but only after written charges, notice, and trial, as above stated. Ga. L. 1922, pp. 834, 849. After a legal and final election of such a recorder, he can not, until his death, resignation, or expiration of his term, be lawfully displaced by the election of another person, except after a removal in.the manner prescribed by the charter.
2. While a municipal commission or council, like other legislative or governing bodies, ordinarily may reconsider and rescind previous ordinances, resolutions, and other acts, it has not, under the great weight of authority, the “power to reconsider its action in electing a municipal officer,” and “the members can not after-
3. The Code, § 89-301, declares that the sections following “shall apply to the oaths of office of all public officers of this State,” and in § 89-302 prescribes a form of oath therefor. However, it provides (§ 89-303) that this oath “shall be forwarded with the dedimus potestatem,” which under § 40-203, is issued only by the Governor in connection with his grant of a commission. See also §§ 89-305, 89-308. These statutes, therefore, manifestly have application to officers commissioned by the Governor, and not to municipal officers not commissioned by him. It follows that an oath by a municipal officer is not necessary in the absence of any requirement thereof by the city charter or some other statute. See Long v. Rose, 132 Ga. 288, 292-295 (64 S. E. 84); Beazley v. Lunceford, 178 Ga. 683 (173 S. E. 852). Accordingly, irrespective of whether or not the failure of a person, elected to an office requiring a written oath, to take such oath before a second attempted election of another person in his place would render the second election legal, on the theory that the person first elected had not become a de juré officer because he had failed to qualify by taking the oath (see Ross v. Williamson, 44 Ga. 501 (2); Rowe v. Tuck, 149 Ga. 88, 99 S. E. 303, 5 A. L. R. 113; Overton v. Gandy, 170 Ga. 562 (3), 567, 153 S. E. 520), such a failure would not affect the legal rights of a first elected municipal officer, such as here involved. This case is therefore differentiated by its facts from Compton v. Hix, 184 Ga. 749 (193 S. E. 252), involving the office of county commissioners, who are required to be commissioned by the Governor and to take oath. Code, § 23-923.
4. Under the preceding rulings and the agreed statement of facts in this quo warranto proceeding involving the rights of the contestants to the office of recorder of the City of Gainesville, the prior legal and final election of the defendant in error made him
