115 Ga. 770 | Ga. | 1902
In January, 1900, Davis was elected clerk and treasurer of the City of Cordele. In February thereafter a majority of the city council adopted a resolution which, after reciting that Davis had been an alderman at the time of his election and had participated therein, and that he was therefore ineligible under the Political Code, § 739, to hold his office, declared the office vacant. The council thereupon elected another clerk and treasurer to fill the unexpired term of Davis, and the latter was no longer allowed to fill the office. After the expiration of the term for which he had been elected, Davis brought suit to recover his salary for the full term. The defendant answered by denying all the material allegations as to the merits, and pleaded specially that the plaintiff had been rightfully discharged because he was not competent to fill the office or discharge its duties, and also that he was an aider-man at the time he was elected, and was therefore ineligible. At the trial of the case the plaintiff testified as to taking the oath of office and giving bond, and that he was competent to discharge the duties of the office and had done so until removed. He also testified .that he had received his salary up to the time of his removal. The defendant introduced evidence tending to show that the plaintiff was not competent to perform the duties of the office, and had not properly performed them while he was in office. It also introduced a resolution of the city council, in which it was recited that Davis had been, an alderman at the time of his election and participated1 therein, and was therefore ineligible, and the office was vacant. Also, a resolution showing the election of another in the place of Davis to fill the unexpired term. It was also shown by
We think that there was no error in the admission of any of this evidence. The minutes showed that the plaintiff had been removed formally by a resolution of council. They also showed that he wras removed because, in the opinion of a majority of the council, he was ineligible to hold the office. The fact recited, that he was an .alderman at the time of his election, would not itself have justified his removal; for the Political Code, § 739, as amended by the act of 1899, p. 26 (Van Epps, Code Supp. § 6132), expressly provides that nothing therein shall render an alderman ineligible to be elected during his term of office to serve in another municipal office in a term immediately succeeding his term as alderman. If the resolution contained in the minutes had gone further and declared that Davis was then an alderman, at the time of his removal, or that his term as alderman had not expired until after the commencement of his term as clerk and treasurer, it would of course have shown ■a sufficient reason for his removal. The record, however, is utterly silent as to whether Davis was an alderman at the time of his vemoval, or whether his term had expired before he qualified as clerk and treasurer. No sufficient reason for his removal was, therefore, stated in the resolution of removal. The city, however, had a right to show, in a suit by him against it for his salary, that there was sufficient legal cause for his removal, other than the invalid cause shown in the resolution. Had his removal been a judicial act on the part of the council, and he had sued out a writ of certiorari on the ground that the reasons alleged were not sufficient to authorize his removal, the city would in such a proceeding have been limited to the reasons specified in the resolution of removal. But when he acquiesced in the ministerial act of removal and then brought suit for his salary, the city is not restricted to the ground
Judgment affirmed.