30 S.E.2d 470 | Ga. | 1944
In a quo warranto proceeding wherein the plaintiff claims title to the office in question, he may recover on the strength of his own title to the office, and not on any weakness in the title of the defendant.
The only logical conclusion that can be reached from the allegations of this petition is that the petitioner contends that in the general election held on August 3, 1943, Copland received more votes than did Stephens, but that some of the votes cast for Copland were not legal votes, and that Copland, for the reasons assigned in the petition, is not qualified to hold the office in question. This means Stephens contends that he is entitled to the office because the successful candidate, Copland, is not qualified to hold the office. The prayers of the petition are as follows: "(1) That this petition for a quo warranto be sanctioned and ordered filed; (2) that the writ of quo warranto issue, and that process issue and be served in terms of the law requiring Hon. Edward Wohlwender Jr. to show cause why he should not be ousted from said office and be directed to cease his usurpation thereof; (3) that upon a hearing of said writ, judgment be entered fixing the right of your petitioner in said office and directing that all papers and books of every kind and character belonging to said office of solicitor-general of the Chattahoochee circuit be delivered to your petitioner; (4) that this honorable court take cognizance of the office of solicitor-general of the Chattahoochee judicial circuit as a res and determine the rightful incumbent thereof; and (5) that petitioner have such other and further relief as to this court may seem meet and proper."
The argument is made by the plaintiff in error that he brought the quo warranto proceedings "as a citizen and taxpayer interested in said office, and as a claimant to said office." Construing the facts set forth in the petition together with its prayers, only one conclusion can be reached, and this is that the proceeding was instituted by Stephens not as an interested taxpayer, but as a claimant to the office. "In a proceeding wherein the relator seeks possession of the office, he may recover upon the strength of his own title and not upon any infirmity or weakness in the title of defendant or respondent." 51 C. J. 361, § 11. We see no reason *797 why this rule of law should not be applicable when the petition assails the right of a successful candidate to be installed in office.
This petition was brought against Wohlwender, seeking to oust him from office and install the petitioner therein. The petition, when construed most strongly against the plaintiff, showing that if Wohlwender is not entitled to the office, Copland was elected to fill the vacancy, the petitioner in this case had no right whatever to institute this proceeding. A quo warranto proceeding can not be converted into an election contest.
The judgment complained of was not error.
Judgment affirmed. All the Justices concur, Bell, C. J.,concurring specially, for the reasons indicated in his specialconcurrence in Stephens v. Wohlwender, ante.
