Stanford v. Lynch , 147 Ga. 518 ( 1918 )

Gilbert, J.

(After stating the foregoing facts.)

1. “The writ of quo warranto may issue to inquire into the right of any person to any public office the duties of which he is in fact discharging, but must be granted at the suit of some person either claiming the office or interested therein.” Civil Code (1910), § 5451. A member of a county board of education is a county officer. Cooper v. State, 101 Ga. 783 (29 S. E. 22); Coleman v. Glenn, 103 Ga. 458, 459 (30 S. E. 297, 68 Am. St. R. 108); Worthy v. Cheatham, 142 Ga. 440 (83 S. E. 113). Any citizen and taxpayer of the county has such an interest in such office as would entitle him to institute a proceeding under the above section of the code, against one assuming to hold that' office and exercising its functions, for 'the purpose of inquiring into and determining his legal right thereto. Davis v. Dawson, 90 Ga. 817 (17 S. E. 110). “Equity will not take cognizance of a plain legal right where an adequate and complete remedy is provided by law.” Civil Code (1910), § 4538. “The incumbent of a public office will not generally be enjoined from performing the duties of that office rightfully or wrongfully where he is a de facto officer. Injunction is not the proper remedy. . . Quo warranto affords an adequate remedy for the trial of title to an office.” 22 Cyc. 888. “When the right to an office or franchise is the sole point in controversy, the specific legal remedy afforded by proceedings in quo warranto is held to oust all equitable jurisdiction of the case.” High’s Ex. Rem. § 619; Throop’s Pub. Off. § 850; Mechem’s Pub. Off. § 378, p. 307; 32 Cyc. 1423, 1424; Tupper v. Dart, 104 Ga. 179 (30 S. E. 624). Quo warranto is not the remedy where there is no question as to the title to the office, but where it is, charged that the officer is guilty of malpractice in office which does not ipso facto work a forfeiture of the office. McDonough v. Bacon, 143 Ga. 283 (84 S. E. 588). “Courts of equity have been loath to interfere in politics, and have invariably declined' to do so where any other remedy is open to those seeking to redress supposed public wrongs of a political nature. Nor can the present petition be entertained under the uniform procedure act of 1887, providing that in the trial of civil cases the superior courts of this State ‘shall give effect to all the rights of the parties, legal or equitable, or both,’ that act expressly excepting from the operation of its provisions proceedings by quo warranto.” Davis v. Dawson, supra; McCarthy v. McKinney, 137 Ga. 292-6 (73 S. E. 394). It is unnecessary to consider any of the issues raised by the demurrers, except that one dealing with the correctness of the remedy.

2. That L. W. Stanford was legally qualified to hold office at the time of his election is not questioned. Having removed from the militia district where he resided at the time of his election, it is insisted that his office is vacated under the following provision of the Code of 1910, § 264: “All offices of the State are vacated by the incumbent ceasing to be a resident of the - . . district for which he was elected.” The vice of this contention is that a member of the county board of education is not elected for a district. He is elected'from a district for the entire county by the grand jury representing the county as a whole. The jurisdiction of each member of the board of education is coextensive with the county, and is not limited to any one militia district. The statutory provision that the grand jury shall not “select any two of those selected from the same militia district or locality” applies to the members of the board at the time of their selection. As was said in the case of Smith v. State, 24 Ind. 101, the facts of which are quite similar to those in the present case, “It will be observed that the section of the statute under consideration does not require a continued residence in the district, but is fully satisfied with the qualification attaching to the person selected at the time his election becomes effective, and he assumes the duties of the office. 'At that time he takes an oath of office, and assumes the duties and a jurisdiction coextensive with the limits of the county. The previous residence within a particular district has secured in the candidate a local knowledge of the peculiar wants and requirements of that district, and the legislature have deemed this sufficient, without requiring a continued residence within the same limits.” See also State of Indiana v. Craig, 132 Ind. 54 (31 N. E. 352, 16 L. R. A. 688, 32 Am. St. R. 237). It follows from what has been said that the judgment of the trial court, in so far as it declares the office of Stanford vacant, must be reversed.

Judgment reversed.

All the Justices concur.