Crovatt v. Mason , 1897 Ga. LEXIS 206 ( 1897 )

Little, J.

The official report states the facts.

The application for leave to file information in the nature of ■a writ of quo warranto, which was made in this case, was denied generally, by the judge of the Brunswick circuit. We reverse that judgment, and in doing so have considered all the grounds which were urged here, both by the briefs and in the argument in support of the judgment rendered below, as well as the objections urged thereto by the plaintiff in error; and will now give the conclusions to which such consideration led,.

1. It is contended by the plaintiff in error, that the defendant was ineligible to hold the office of mayor of Brunswick on December 12, 1896, the date at which the regular election was held, and that such ineligibility was caused by the following facts: that on the. 2d Saturday in December, 1895, the defendant was elected an alderman of the city of Brunswick for and during a term of two years, commencing on the 1st Monday in January, 1896; that he qualified, and was filling the said term as alderman of Brunswick at the date of the regular election in 1896; that the term for which he was elected aider-man did not expire until the 1st Monday in January, 1898; that under the laws of Georgia he was not eligible to the office of mayor of Brunswick during the term for which he was elected alderman, and is therefore not entitled to hold the office of mayor, for which office he was a candidate and received a majority of the votes on December 12, 1896.

To this contention, it is replied by the defendant, that, by the provisions of an act-to consolidate and amend the several acts incorporating the city of Brunswick (Acts of 1872, page 151), it is provided that all male persons, citizens of the United States, who have resided six months in the State and thirty days immediately preceding the election in the corporate limits of Brunswick, have registered, attained the age of twenty-one years, and paid all taxes legally demanded, etc., shall be qualified to vote for mayor and aldermen, and that any person legally entitled to vote for those officers, and who shall have actually resided twelve months previous to the election in said city, was and is eligible to the office of mayor or alderman; that the respondent was qualified under this act to hold the office of mayor; and that the act of 1895, as well as the act of 1889 of which it is amendatory, and which are relied on by the plaintiff as establishing the ineligibility of the defendant, are unconstitutional and void, because they except from their operation towns of less than two thousand inhabitants, and are not, therefore, general laws.

The provisions of the act of 1889 (Acts 1889, p. 181) as amended are incorporated in Acts of 1895, page 79, which reads' as follows: “Section 1. That from and after'the passage of this act, the councilmen and aldermen of the towns and cities of this State shall be incompetent to hold, except in towns-of less than two thousand inhabitants, any other municipal office in said towns and cities during the time for which they are chosen; provided, that nothing herein contained shall apply to any municipal office which is to be filled by appointment by the mayor; provided further, that nothing in this act shall be so construed as to allow any one person to hold more than one municipal office at any one time, but any councilman or aider-man appointed during his term to any other municipal office shall resign his position as councilman or alderman before he shall be eligible to enter upon the duties of the appointed office.” The objection urged to this act is, that by its provisions an entire class is excepted and the excepted class is left without any law on the subject, and being so the act is not general in its nature, and must be obnoxious to the constitutional provision, in that it is so limited as not to have uniform operation throughout the State; and the case of Mathis v. Jones, 84 Ga. 804, is cited to support the proposition that general laws “can not be deprived of their force in one part of the State without simultaneously depriving them of force in every other part.” The proposition is sound and the authority good, but the application is the fault of the argument as we view it. A law which has uniform operation throughout the State must be a general law as contemplated by our constitution, and quoting from Chief Justice Bleckley in the case cited supra, “A law may take its general nature either from its territorial comprehensiveness or from the nature of its subject-matter, or from both. A law may be-of a general nature notwithstanding its subject-matter is of a local nature, its general nature being due alone to its territorial comprehensiveness. A law which is general by reason of its territorial comprehensiveness only, can no more be limited in its operation territorially by a subsequent special law than one which is general in the nature of its subject-matter.” The contention of the respondent in this case would seem to require that a law to be general must be universal in its operation. It will be noted that our constitution only requires it to have uniform operation; that is, to apply to all persons, matters or things which it is intended to affect, to operate on all which come within the scope of its provisions alike, that is uniformly. Uniform does not mean universal. 17 Cal. 547. The constitution is complied with in this respect, when the law operates uniformly upon all persons who are brought within the relations and circumstances provided by it. 20 Iowa, 338. And a law is general, under the constitution of Georgia, when it operates uniformly throughout the whole State upon the subject with which it purposes to deal. Lorentz & Rittler v. Alexander, 87 Ga. 444. If it excepts one or several of those subjects or classes of subjects, it is not general. A statute relating to persons or things as a class is a general law. 40 N. J. L. 123; 77 Penn. St. 338. The application of this principle has been directly ruled by this court in construing the statutes of this State, in Bone v. The State, where the act construed authorized the superior court to sit in two sections, in counties of this State in which there were cities of ten thousand inhabitamts or more. 86 Ga. 108. The court there held that the General Assembly had the power to make such classification.

The plain meaning of the act of 1895 is, that councilmen and aldermen of all cities and towns in this State, having two thousand or more inhabitants, shall be incompetent to hold any other municipal office in such town or city during the time for which they were chosen such councilmen or aldermen. The class of subjects with which this act intends to deal is aldermen and councilmen of all cities and towns in the State which have two thousand or more inhabitants. Aldermen in a town or city of less than two thousand inhabitants are not within the scope of the act. They are not of the class brought under its provisions. The act is generalfin its terms as applying to all cities and towns in the State having two thousand inhabitants or more. None are excepted; and while the statute is in force, ex vi termini, all towns'and cities which come into the enumerated class will be affected by the act. It is a classification by population for the purpose of general legislation. As the act operates uniformly upon all cities and towns throughout the State which are included and come into the class concerning which the legislation is had, we hold the act to be a general law. Nor do we think that the contention of the respondent that the special act declaring what persons are eligible to the offices of mayor and aldermen of the city of Brunswick is not modified by the general act of 1895, is sound. True, under the act of 1872, consolidating the laws incorporating Brunswick, an alderman was eligible to the office of mayor; but the general act of 1895 is the declared policy of the State as to all cities in Georgia, including Brunswick. It was the legislative act which created the municipal corporation of Brunswick and prescribed how and the manner in which the offices of the corporation should be filled; having done so, it remained in the power of the legislature to change that method at will; and we know of no reason why this can not be legitimately done by a general statute declaring and fixing the policy of the State in all cities and towns of a certain class, which embraces that municipal corporation. But it is said, repeals by implication are not favored. This is correct as a legal proposition; but it must be noted, in applying it to this case, that the terms of the special act applicable to the city of Brunswick alone are necessarily in conflict with the provisions of the act of 1895, which were enacted to apply to all cities of the State of the class in which Brunswick comes; and while ordinarily a general law does not repeal a prior local law unless the latter be specially named or necessarily embraced in the terms used, yet where it is apparent from the act itself that it was intended to embrace the special or local law, the latter will be held to be modified or repealed thereby. Swift v. Van Dyke, 98 Ga. 725. See also Pausch v. Guerrard, 67 Ga. 319; Mayor of Montezuma v. Minor, 70 Ga. 191. The terms of the general act are clearly repugnant to the special law ; the two are so irreconcilably inconsistent as that both can not stand. The general act manifestly intended to include Brunswick in its operation, and a modification of the terms of the special act must result. In Sutherland on Statutory Construction, pages 213, 214, the text, amply supported by adjudicated cases, says: “There is no rule of law which prohibits the repeal of a special act by a general one, nor is there any principle forbidding such repeal without the use of words declarative of that intent. The question is always one of intention, and the purpose to abrogate the particular enactment by a later general statute is sufficiently manifested when the provisions of both can not stand together. . . The intention to except from such a law those which have special laws will not be imputed to the legislature when such exception would render the law unconstitutional, and it is framed broad enough to embrace the entire class to which it relates.”

We are clear therefore that the act of 1889 and amending act of 1895 did modify the act consolidating the acts incorporating Brunswick, and that the terms of these acts applied to the election for mayor and aldermen of Brunswick, held in December, 1896.

2. The respondent to the application submits here the proposition that the office of mayor was never intended to be included and is not included in the words “other municipal officers,” as used in the act of 1889 and the amending act of 1895. The words “other municipal officers,” as used in the act, are put in opposition to councilmen and aldermen. These by the act are recognized as municipal officers — municipal officers other than aldermen and councilmen the act refers to. An alderman is one of a board of municipal officers next in order to the mayor, and mayor is the chief officer of a municipal corporation. Webster Int. Diet. Title, Alderman, Mayor. The mayor is not only a municipal officer, but he is the chief municipal officer highest in grade, and the head of the municipal government. The act vests municipal authority and control in the “mayor and aldermen”; they take the same oath, section 5, act of 1872. We can not doubt that the office of mayor is embraced in the phrase “other municipal office,” when used in the act.

3. It is further contended by the respondent, that as the act of 1892 (page 215, section 7), in fixing the term of office of the mayor and aldermen, declares that these officers “shall hold their offices for two years, or until their successors are elected and qualified,” the term is not fixed at two years, but by the use of the disjunctive, or, the term expires whenever his successor is elected and qualified; that the respondent in this case assumed the aldermanic office on the first Monday in January, 1896, for two years, or until his successor should be elected and qualified; that he resigned such office on December 23, 1896, and his successor was elected and qualified December 30, 1896, and that when he assumed the office of mayor on the first Monday in January, 1897, Iris term as alderman had expired, under the statute, and he was eligible to hold the office. The able counsel presenting this view supports it by invoking the principle that the manner of appointment and qualification of municipal officers and the duration of terms of office as prescribed must be strictly complied with. To this we assent. The word “term,” when used in reference to the tenure of office, means ordinarily a fixed and definite time (Mechem, Public Officers, page 385 ); and upon the expiration of the officer’s term, unless he is authorized to hold over, his rights, duties and authority as such must ipso facto cease. Ib. § 396. It is usually provided by law that officers elected for a fixed term shall hold not only for that term, but until their successors are elected and qualified. When no such provision is made, the question of the right to hold over is not so clear; but the prevailing opinion in this country is, that unless such holding over is prohibited the incumbent may continue to hold until his successor is elected and qualified. The reason given is, that there would otherwise frequently be cases where, from failure to elect or refusal to qualify, the office would be vacant and the public service suspended. Ib. §§ 396-397. Throop on Public Officers, chap. 14. By the act of 1892 supra, the term of an alderman of the city of Brunswick is fixed at two years, and such is the time, under that act, for which he is elected; clearly so. If the disjunctive or is to be regarded as limiting the term, then whenever an alderman resigned, his term was ended and his successor would begin a new term of two years when he qualified; but reference to last paragraph of section 7 of the act will show that no such construction was intended to be given to the use of the conjunction “or.” It is there declared that if a vacancy occurred, an election to fill such vacancy for such unexpired term should be held, not by the people, as in the case of an original term, but by the mayor and aldermen in council assembled. It is apparent that the provision, “or until his successor is elected and qualified,” does not reduce or change the term for which the officer is elected, but the meaning of such phrase is to extend the time in which he may hold the office beyond his term to a period when the office is filled by another who has been elected and qualified.

The act of 1895, in declaring councilmen and aldermen incompetent to hold any other municipal .office, uses the words, “during the time for which they are chosen.” “Two years or until his successor shall be elected and qualified,” means that the time for which an officer is chosen under that regulation is two years. If an officer after his election resigned, such resignation could not affect the time for which he was chosen; so we hold that, under the act of 1892, the regular term of office of the aldermen of Brunswick is two years, and at a regular election held under that act for the election of such officers for the city, they are chosen for a term of two years.

4. An application for leave to file an information in the nature of a writ of quo warranto, to inquire into the right of a person exercising the duties of the office of mayor of a city, will be granted at the suit of some person either claiming the office or interested therein. Civil Code, §4878. When the application is based on the claim of the relator to the office, it must be shown that such claim is bona fide madeand if the facts are set forth upon which the relator bases his claim, so that the question presented be one of law, the court will in the exercise of its judgment pass upon the legal effect of the claim as made, and grant or refuse the leave to file the information. It would be an act of supererogation to grant the application where the relator files it on the sole ground that he was entitled to the office, when the law, as applied to the facts set forth, negatived such claim.

Granting or refusing the application rests in the sound discretion of the court. Mechera’s Pub. Off. § 480; Throop on Pub. Officers, §781. . And he, if a private person, must show affirmatively upon his application that he has at least prima facie the better title. Collins v. Huff, 63 Ga. 207.

5. It is not a condition precedent to granting the leave to file the information on the application of a private person, that the relator shall show himself entitled to the office, but the proceeding is the proper and appropriate remedy for trying and determining the title to the office, and ascertaining who is entitled to hold it; also of removing an incumbent who has usurped it — one who claims by an invalid election, as well as one who illegally holds it after the expiration of his term. Me-chem’s Pub. Off. §478, and authorities cited in note 2. It is not essential to the jurisdiction, that a person is to be put in possession of the office; it suffices that a person holding office unlawfully is to be ousted. Throop on Pub. Off. §778. In the case of Davis v. City Council of Dawson, 90 Ga. 817, this court held in terms, that a defeated candidate has such an interest in the office, though not claiming it, that he might dispute the result of the election and proceed to have the election set aside and the office declared vacant.

6. The relator in this case based his application for leave to file the information on two grounds: First, that Mason, who is. filling the office of mayor and received the highest number of votes therefor, was incompetent to hold and ineligible under the law to said office when the election was held, and now; that at said election relator was a candidate and eligible to said office of mayor, and having obtained a majority of votes cast for any candidate eligible to hold the office of mayor, he claims that he was elected to said office, and by virtue of such election he is entitled to be sworn in and serve as mayor for the term ending the first Monday in January, 1899. The answer of the respondent sets out that at the election relator received one hundred and twenty-three votes, and the respondent four hundred and forty-three votes. The answer also admits substantially the facts that he was an alderman of the city of Brunswick at the time the election for mayor was held, and was elected 'alderman at the time and for the term as alleged by relator. Under these facts the relator prays leave be granted him to file the information as being legally entitled to the office of mayor under and by virtue of such election. -

If the relator under the facts is entitled to the office, leave to file the information on this ground should have been granted. Our first code, taking effect January 1, 1862, § 126, made the following provision: “ If at any popular election to fill any office the person elected is ineligible under the foregoing rules, the person having the next highest number of votes, who is eligible, whenever a plurality elects, shall be declared elected, and be qualified and commissioned to such office.” One of the “foregoing rules” referred to is ineligibility under the constitution and laws. We have endeavored to trace the source of this stated provision of law, and find that it was codified from an act of the legislature approved January 22,1852 (Acts of 1851-52, page 79), amending the act of December 4, 1799, which provided for appointment of county officers, and making it the duty of the governor to commission the person having the highest number of legal votes, or order a new election as circumstances might require, where an election for ordinary or any county office should be contested and the grounds sustained. Apparently in the code it was made to apply to all officers — in the original act to county officers who were commissioned. • The same provision appeared as the law in the Code of 1868, § 121, and in the Code of 1873, § 130, but was expressly repealed by an act of the General Assembly in 1871 (Acts of 1871-72, page 19), and we now have no statute containing this provision. In the case of the State ex rel. Hardwick v. Swearingen, 12. Ga. 23, this court held that a person receiving only a minority of the legal votes polled is not entitled to be installed into an office, notwithstanding the incumbent be removed on account of some personal disqualification. Under such circumstances a new election will be ordered. The American doctrine, supported by an undoubted preponderance of authority, is that though the candidate receiving the highest number of votes because of his ineligibility fail of an election, yet the votes cast for him are so far effectual as to prevent the election of other candidates, and there is no election at all. 52 Am. Dec. 149; 14 Wis. 497; 13 Cal. 145; 21 La. 289; 53 Mo. 97; 47 Miss. 266; 66 Pa. 270. Unless the votes for an ineligible person are expressly declared to be void, the effect of such person receiving a majority of the votes cast is, according to the weight of American authority and the reason of the matter, that a new election must be held, and is not to give the office to the qualified person having the next highest number of votes. Throop on' Pub. Officers, and authorities cited under note 1. The ground then taken by the relator, that, by virtue of the ineligibility of the respondent (who received the largest number of votes), he, the relator, being eligible and receiving the next highest number of votes, is entitled to the office, is not tenable; and on this ground leave to file the information was properly refused.

But the relator also alleges in his application, that “he is a citizen of the State of Georgia and of the county of Glynn and of the city of Brunswick therein, and that as such citizen he has an interest in and is entitled to all the privileges of a citizen in the election of officers for said city and in the office of mayor of said city.” The interest which one who is a citizen and taxpayer has in the due administration of public affairs will entitle him to maintain the proceeding. Churchill v. Walker, 68 Ga. 681; 44 Penn. St. 341; 46 Conn. 479; 53 Mo. 97; 42 N. J. L. 435. Both of these remedies, that is, to install into office the person legally elected, and to oust the incumbent illegally discharging the duties, may be sought by the same information. Mechem’s Pub. Off. §478; 12 N. E. R. 700.

It follows from what has been said as to the general law of ■ the State rendering councilmen and aldermen of cities and towns of this State, of the class in which the city of Brunswick is placed, incompetent to hold any other municipal office in such city during the time for which they were chosen as such councilmen or aldermen, that the facts stated in the record would entitle the relator to leave to file the information for which application was made, not on his claim to the office under the facts shown, but by reason of his citizenship and consequent interest in the office of mayor; and the judgment of the court below refusing the application is

Reversed.

All the Justices concurring.