Darby v. Fulmer , 170 Ga. 846 ( 1930 )

Gilbert, J.

Section 15 of the charter of the City of Yidalia (Ga. Laws 1922, p. 1017) provides: “He [the mayor] shall appoint a mayor pro tem. from the members of council, who shall in his absence have all the power vested in the mayor by this charter.” Fulmer and three other taxpayers of the city filed a petition alleging that Darby, the mayor’, after having been requested in a regular meeting of the council by one of its members to make the appointment provided for, had failed and refused to do so. The prayer was for writ of mandamus to compel the mayor to appoint a mayor pro tem. The answer of tlic defendant denied that he had refused to appoint a mayor pro tem., and asserted that it had always been his purpose to make such appointment when emergency should arise or the interests of the city should demand the same; that the four individuals who brought the petition were all members of the city council, and were antagonistic to him; that there was no need for the appointment of a mayor pro tem. ; and that the petition was brought for the purpose of curtailing the powers of the mayor in certain respects. The trial court took the view that the terms of the act quoted created the office of mayor pro tem., and mandatorily required the mayor, within a reasonable time, to make the appointment. The order granting mandamus absolute recites that the defendant assumed the office of mayor on January 1, 1930, and that less than ninety days had elapsed from the date of his qualification to the filing of the petition; and provided that he have thirty days to make the appointment. To this judgment the defendant excepted. Held: The court did not err in granting the mandamus absolute. Thirty days, as allowed in the order, is a reasonable allowance of time within which the appointment must be made.

Judgment affirmed.

All Ihe Jusliees eoneur, except Russell, O. J., who dissents. Cowart & Pope, for plaintiff in error. Saffold, Sharpe & Saffold, contra.