Opinion
17818.
ARGUED APRIL 14, 1952.
DECIDED MAY 12, 1952. REHEARING DENIED JUNE 11, 1952.
Quo warranto. Before Judge Guess. Clayton Superior Court. January 18, 1952.
Dwight Moody Johnson, for plaintiffs in error.
Harold Sheats and Paul B. Huckeby, contra.
Under Code § 69-201, an alderman of a town of more than 2000 inhabitants whose tenure is for a term of two years, is incompetent to hold the office of mayor during that period of time; and, accordingly, the act of 1950 (Ga. L. 1950, p. 2144), amending the charter of the Town of Forest Park, in so far as it sought to provide otherwise, is ineffective, in that it was an attempt to make a provision by a special law that was contrary to the terms of a general law covering the same subject.
No. 17818. ARGUED APRIL 14, 1952 — DECIDED MAY 12, 1952 — REHEARING DENIED JUNE 11, 1952.
O. I. Carroll and Claude B. Brown, as citizens and taxpayers of the Town of Forest Park, brought a petition in the nature of a quo warranto to test the right of James K. Currie to hold the office of mayor of said city.
It was alleged: That the respondent was elected as alderman and entered upon his duties the first Monday in January, 1951; that his term of two years continued until the first Monday in January, 1953; that, about January 23, 1951, the mayor died and the city council selected the respondent to fill the unexpired term as mayor; that he resigned as alderman and began to discharge the duties of mayor; that subsequently, the first Saturday in December, 1951, an election for mayor was held, the respondent was elected for a term of two years beginning the first Monday in January, 1952, and he is now serving as mayor; and that the Town of Forest Park, at all times referred to, had more than 2000 inhabitants.
It was also alleged that, at the time the respondent was elected mayor, the term for which he had been elected as alderman had not expired, and that therefore he was, under Code § 69-201, incompetent to hold the office of mayor. The prayer was that the respondent be ousted from the office of mayor, and that the office be declared vacant.
A demurrer to the petition was sustained, and the exception is to that order.
The plaintiffs in error insist that Currie is incompetent to hold the office of mayor, under the provisions of Code § 69-201, to wit: "Councilmen and aldermen of the towns and cities shall be incompetent to hold any other municipal office in said towns and cities during the term of office for which they were chosen: Provided, that nothing herein shall render them ineligible to be elected during said term, to serve in a term immediately succeeding said term, but nothing in this section shall apply to any municipal office which is filled by appointment of the mayor. Any councilman or alderman appointed during his term to any other municipal office shall resign before being eligible to enter upon the office to which he has been appointed: Provided, that nothing herein contained shall be construed as repealing any provisions to the contrary hereof in any charter of any city or town in this State."
Currie bases his eligibility to the office on the terms of an amendment to the charter of the Town of Forest Park (Ga. L. 1950, p. 2144), which in part provides: "In event of a vacancy occurring in any of said offices the same shall be filled as to the Mayor by the Board of Aldermen selecting one of their number to fill the unexpired term." At the time of the passage of this amendment, Code § 69-201 was a part of our general law, and the amendment to the charter could be given no effect because it was contrary to a general law applicable in such cases when the amendment to the charter was passed. Jones v. McCaskill, 112 Ga. 453 ( 37 S.E. 724); Wilkins v. Mayor c. of Savannah, 152 Ga. 638 (2) ( 111 S.E. 42). See generally City of Atlanta v. Hudgins, 193 Ga. 618 (1) ( 19 S.E.2d 508).
The respondent's resignation as alderman, or his subsequent election as mayor, which occurred during the two-year period covering his term as alderman, does not re-establish his eligibility. Crovatt v. Mason, 101 Ga. 246 (3) ( 28 S.E. 891).
Nor does the last sentence in Code § 69-201, "Provided, that nothing herein contained shall be construed as repealing any provisions to the contrary hereof in any charter of any city or town in this State," make valid this amendment of 1950 to the charter. This sentence was an amendment to the Code by act (Ga. L. 1899, p. 26), and could have application only to provisions in charters existing at that time. As was said in Jones v. McCaskill, supra, "its effect could only be to re-enact provisions, in municipal charters, which the general law of this section had repealed."
Accordingly, the trial judge erred in sustaining a general demurrer to the petition.
Judgment reversed. All the Justices concur.