Plaintiff April Wyatt filed a verified petition for quo warranto and declaratory judgment, naming the city, mayor and city councilmen as defendants. The petition alleged that Wyatt was duly appointed to the board of the College Park Business and Industrial Development Authority (“CPBIDA”) in 2005; that thе only qualification for serving on the CPBIDA is that the member reside within the city limits of College Park for at least six months prior to appointment; that Wyatt met that requirement and that she continues to reside in College Park; that on August 7, 2006, the mayor and city council voted to remove Wyаtt from the CPBIDA because she did not reside in Ward 2; that members of the CPBIDA are not required to live in any particular ward; and that the mayor and city council removed Wyatt without just cause and in violation of her right to notice, hearing, and due process. In addition to a writ of quo warranto, Wyatt sought a declaration that the mayor and city council exceeded their authority in removing her and that she should be reinstated as a member of the CPBIDA. Copies of the amendment authorizing creation of the CPBIDA (Ga. L. 1980, p. 2071 et seq.), the CPBIDA’s bylaws, and the minutes of the meeting at which the city council voted to remove Wyatt were attached to and incorporated in the petition. Defendаnts answered, denying the material allegations of the petition. They also asserted several affirmative defenses, including failure to join indispensable parties, to wit: the CPBIDA and Valerie Dixon, Wyatt’s successor. Thereafter, Wyatt moved to add the CPBIDA and Dixon as defendants and the motion was granted. In the meantime, the court scheduled a hearing upon Wyatt’s petition for quo warranto. At the conclusion of that hearing, the court entered an order finding that the city did not have cause to remove Wyatt, and that, in any event, it did not give her nоtice and an opportunity to be heard. The court declared the acts of the mayor and the city council null and void and оrdered that Wyatt be restored to her position as a member of the CPBIDA. The court further directed the CPBIDA to enact regulations providing for the removal of its members. This appeal followed.
1. Ga. L. 1980, p. 2071 et seq., sets forth the procedure to appoint members оf the CPBIDA and provides that members are to be *480 appointed for a four-year term. It requires members to be residents of the City of College Park for six months prior to their appointment, but does not require them to be residents of a particular ward. In fact, it imposes no additional requirements upon members. The CPBIDA’s bylaws are in sync with that amendment.
Neither the amendment nor the bylaws provide for removal оf the CPBIDA’s members without cause. Here, it is undisputed that the only reason given for the removal of Wyatt is that she is not a resident of Ward 2. Thus, it is cleаr that the City removed Wyatt without cause and that it lacked the power to do so.
Hernandez v. Downtown Dev. Auth.,
2. The city contends that we must reversе the judgment because it is not supported by legally admissible evidence. This contention is based on the fact that during the hearing on Wyatt’s petition, the court entertained argument of counsel, but it did not seek or receive testimony, exhibits, or other evidence.
Although a jury trial is in order in a quo warranto proceeding to adjudicate issues of fact, OCGA § 9-6-65, a jury trial is not required where the only issue concerns а question of law.
Hornsby v. Campbell,
Our decision in this matter is buttressed by the fаct that, during the course of the hearing, the city did not at any point insist that it was entitled to present evidence, even though it was cleаr that the court intended to rule on the merits of the case. And, even if it can be said that the court should have taken evidence without the city insisting upon it, we can discern no harm because the city has not identified any facts that it would have introduced in evidence and that would have led the court to rule in its favor. See generally
Hall v. State,
3. The city also asserts Dixon was not рersonally served with process, see OCGA § 9-6-63, and that this quo warranto proceeding could not proceed without her. See
Gary v. Ogletree,
4. The court ordered the CPBIDA to enact specific bylaws to establish a procedure to ensure that, if a member is to be removed for cause, the remоval is proper and affords the member all due process rights. We agree that in so doing the court erred.
The amendment creating the CPBIDA provides that the CPBIDA “shall make rules and regulations for its own government.” Ga. L. 1980, p. 2074. Thus, the CPBIDA is vested with discretion to determine what regulations it deems necessary to govern itself. See
Glustrom v. State,
A court can compel an agency to perform a public duty that it is bound to perfоrm; but it cannot compel a discretionary act unless there is a gross abuse of discretion.
Persons v. Mashburn,
Judgment affirmed in part and reversed in part.