Opinion
17304.
JANUARY 11, 1951.
REHEARING DENIED FEBRUARY 15, 1951.
Quo warranto. Before Judge Philips. DeKalb Superior Court. September 6, 1950.
H. Scott Schmid, for plaintiff.
W. Harvey Armistead and T. O. Davis, for defendant.
1. The judgment of the court below, sustaining the special demurrers to the petition, was not error.
2. The judgment of the court below, dismissing the petition, was error and must be reversed.
No. 17304. JANUARY 11, 1951. REHEARING DENIED FEBRUARY 15, 1951.
Plaintiff in error filed an information in the nature of a quo warranto, seeking to inquire into the right of the defendant in error to hold the office of Judge of the Civil Court of DeKalb County. The information alleged in substance: that plaintiff was a citizen and taxpayer of DeKalb County and of the City of Atlanta; that the Municipal Court of Atlanta, DeKalb Division was created by the act of 1913 (Ga. L. 1913, p. 145); that the name of the court was changed to Civil Court of DeKalb County by the act of 1939 (Ga. L. 1939, p. 449); that, by the act of 1927 (Ga. L. 1927, p. 383), the act of 1913 was amended so as to provide: "That any attorney at law who has been practicing law for a period of two years and who is a qualified elector and a resident of DeKalb County inside the City of Atlanta shall be eligible to hold the office as Judge of the Municipal Court of Atlanta, DeKalb Division. . ."; that defendant was at the time of his appointment a resident of the Panthersville District of DeKalb County; that defendant was at the time of his appointment a qualified elector of the Panthersville District of DeKalb County; that the Panthersville District is outside the City of Atlanta; that defendant is ineligible to hold the office of Judge of the Civil Court of DeKalb County, in that at the time of his appointment he was not a resident of DeKalb County inside the City of Atlanta; that the defendant is ineligible to hold said office, for the reason that at the time of his appointment he was not a qualified elector of DeKalb County inside the City of Atlanta; that defendant has assumed the duties of said office and continues to enjoy the privileges and emoluments thereof; that defendant claims title to said office by reason of the appointment and commission of July 31, 1950; that defendant is ineligible to hold said office by virtue of the act of 1927; that the office of Judge of the Civil Court of DeKalb County is a public office; that, unless the writ of quo warranto issues, defendant will continue to illegally discharge charge the duties of said office. The prayers of the petition are for process and a judgment of ouster.
Defendant in error filed special demurrers to all paragraphs of the petition setting out that defendant was ineligible to hold the office of Judge of the Civil Court of DeKalb County because he was not a qualified elector of DeKalb County inside the City of Atlanta, as required by sec. 1 of the act of 1927, supra; contending that said act was repealed by sec. 3 of the act of 1929, page 369, which provides: "Be it further enacted by the authority aforesaid, that said judge of the DeKalb Division of the Municipal Court of Atlanta shall be a resident of DeKalb County and of the City of Atlanta, and shall have been engaged in the practice of law at least two years next preceding his appointment hereunder, or shall have been a judge of this court at least two years next preceding his appointment hereunder."
The judge of the court below sustained all special demurrers except the demurrer to paragraph 7, which set out that defendant was a qualified elector of the Panthersville District of DeKalb County, which was overruled. The order provided that plaintiff should have ten days in which to amend, or in default thereof the petition should stand dismissed. Plaintiff filed exceptions pendente lite to this order, and failed to amend within ten days as provided in the order and, at the end of such period, filed a bill of exceptions complaining of the rulings on the special demurrers and of the judgment of dismissal.
1. The issue made by the pleadings in the instant case is whether or not sec. 3 of the act of 1929 (Ga. L. 1929, p. 369) repeals sec. 1 of the act of 1927 (Ga. L. 1927, p. 383). It is not contended that the 1929 act expressly repeals the 1927 act, but it is contended that it does so by implication.
There are two instances in which a statute will be deemed to have repealed a prior statute by implication. One is when the provisions of the later are inconsistent with or repugnant to the provisions of the former act. The other is when the later act deals with and embraces the whole subject-matter of the legislation of the former act. We recognize the well-settled principle in our law that "repeals by implication are not favored and never occur except where the later act is clearly and indubitably contradictory and contrary to the former act. . . In order to bring about a repeal by implication, the legislative intent must be clear, manifest, and irreconcilable with the intent not to repeal." Connor v. O'Brien, 198 Ga. 221 ( 31 S.E.2d 399). It is, however, the duty of the courts in the construction of statutes to give effect to the intention of the legislature when it is ascertainable. Thacker v. Morris, 196 Ga. 167 ( 26 S.E.2d 329); Thompson v. Eastern Air Lines, 200 Ga. 216, 222 ( 39 S.E.2d 225).
The Municipal Court of Atlanta, DeKalb Division was established in 1913 (Ga. L. 1913, p. 145 et seq.). The act establishing the court provided for two divisions, the Fulton County Division and the DeKalb County Division. It is only with the latter that we are here concerned. The act provided that the DeKalb Division should have two judges and provided what their qualifications should be. In 1927, the legislature passed an act amending the 1913 act, which, among other things, repealed sec. 6 of the 1913 act — the section dealing with the qualifications of the judges of the Municipal Court of Atlanta, DeKalb Division — and provided that the judges should be lawyers who had been practicing for a period of two years, and further provided that they should be qualified electors and residents of DeKalb County inside the City of Atlanta, as quoted in the statement of facts.
The act of 1929 amended the act of 1913 as amended by the act of 1927, by repealing sec. 5 of the act of 1913, which provided for two judges of the Municipal Court of Atlanta, DeKalb Division, and substituted therefor sec. 5 as amended, which provided for only one judge of said court, and increased the jurisdiction of the court. The amendment included sec. 3, which deals with the qualifications of the judge of the court and is quoted in the statement of facts. It is this section which it is contended repeals sec. 6 of the act of 1913 as amended by sec. 1 of the act of 1927.
Sec. 6 of the act of 1913 as amended by sec. 1 of the act of 1927 fully sets forth the qualifications of the judges of the Municipal Court of Atlanta, DeKalb Division. In 1929, the legislature passed an amendment to the act of 1913 as amended by the act of 1927, which also sets out fully and completely what shall be the qualifications of the judge of said court. It provides: "that said judge of the DeKalb Division of the Municipal Court of Atlanta shall be a resident of DeKalb County and of the City of Atlanta," etc. It does not purport to be amendatory or cumulative of sec. 6 of the former act. It states that the judge "shall be a resident of DeKalb County and of the City of Atlanta," and continues to outline fully the qualifications of the judge. Under these circumstances, we must hold that, by the passage of sec. 6 of the act of 1929, the legislature intended to deal with the whole subject-matter of the qualifications of the judge of the Municipal Court of Atlanta, DeKalb Division. The result is, that by the passage of the above act, the legislature impliedly repealed, not only those provisions of the former act which are inconsistent with or repugnant to the later act, but all of the former act, and substituted therefor an entirely new section relating to the qualifications of the judge of the Municipal Court of Atlanta, DeKalb Division. See 50 Am. Jur., § 552; Hodges v. Myers, Suydam Co., 17 Ga. 292; Jones v. Central Railroad Banking Company of Georgia, 21 Ga. 104. Therefore, the act of 1929 determines the qualifications of the judges of said court, and it was not error to sustain the special demurrers to the paragraphs of the petition setting forth that the defendant in error was ineligible to hold said office because he was not a qualified elector of DeKalb County inside the City of Atlanta, as required by the act of 1927.
2. It is contended by the plaintiff in error that, even though the judgment of the court below was correct in sustaining the special demurrers to the petition, still it was error to dismiss the petition, for the reason that, by the act of 1929, the judge is required to be a resident of DeKalb County and of the City of Atlanta, and it is alleged in the petition that the defendant in error is not a resident of the City of Atlanta. The act of 1929 provides: "that said judge of the DeKalb Division of the Municipal Court of Atlanta shall be a resident of DeKalb County and of the City of Atlanta . ." The petition alleges that the defendant in error is not a resident of the City of Atlanta, and this allegation is sufficient, under the circumstances in the instant case, to set out a cause of action against the defendant in error because, under the allegations of the petition, he is not qualified under the act of 1929 to hold the office of Judge of the Civil Court of DeKalb County.
Accordingly, the judgment of the court below dismissing the petition was error and must be reversed.
Judgment affirmed in part; reversed in part. All the Justices concur.