85 Ga. 708 | Ga. | 1890
“The mayor of Waycross, elected for the year 1890, having died, in order to fill the vacancy caused by his death, the town council, under the charter of the city, ordered an election to he held at a certain time after publication of the notice for such election in the newspapers published in said city. The day named for the election to be held was the'20th day of February, 1890. In one of the city papers that notice was properly published for the requisite number of days. In the other it was published for eight days only, and then was made to read, by reason of a typographical error, “the 20th day of February, 1809.” Observing this error in the
“As to the second point made m this record,it appears from an inspection of the charter of the city of Waycross that in the event the office of mayor of the said city should become vacant by death, resignation, removal or otherwise, a majority of the council shall order a new election by giving at least ten days’ notice in any one or more of the city papers, or at two or more of the most public places in said city. This charter provision contemplates the ordering of one election, and there is no provision of the chaiter which either expressly or by reasonable implication empowers the mayor and council to postpone an election once ordered. If, in the exercise of this power, they ordered an election, and the order authorizing the election was published in accordance with the charter, there is no reason why the mayor and council should be empowered to postpone it. By the terms of the charter, they may order an election. If the order calling for the election was void, or if the election were ordered to be held on an impossible day, or if it were ordered to be held on Sunday, or by reason of a failure to give proper notice the call for the election were absolutely void, then the city council, under the charter power, would have no right to postpone that election, but in the exercise of that charter power they could, and it would be their duty to order an election. To hold that the mayor and council would have the right to postpone an election once ordered, is to adjudge the principle correct, and so extend by construction their charter power, that by successive postponements it would be in their power indefinitely to defeat an election of a new mayor, or
It will be seen that whether the resignations of the two members of council took effect or not without acceptance, the result would be the same in this case. Therefore, so much of the opinion as relates to that topic may stand over for future consideration if a case-should hereafter arise in which a positive decision may be found necessary. The ruling of Judge Atkinson,
Judgment affirmed.
Note by C. J. — The city charter so provides in the 4th section.
A majority of the council. See above.