Opinion
17088.
MAY 9, 1950.
Quo warranto. Before Judge Rowland. Johnson Superior Court. February 18, 1950.
Emory L. Rowland, for plaintiff in error.
J. W. Claxton and E. L. Stephens, contra.
1. In a quo warranto proceeding, where the parties by agreement submit the cause to the trial judge for final determination as to all issues of fact and law as made by the pleadings, and the defendant's response raises an issue of fact, and the judge renders a judgment in favor of the relator, it will be presumed that the judge resolved the issues of fact in favor of the relator.
2. Under the charter of the Town of Kite (Ga. L. 1890-91, p. 755), the mayor is not a member of the town council composed of five members, and while acting as the presiding officer at a meeting of the mayor and council, held for the purpose of electing a charter officer, where there are two candidates, and three councilmen vote for one candidate and two councilmen vote for the other candidate, the mayor had no right to cast a vote, causing a tie, and then to give the casting vote breaking the tie and declaring the candidate receiving two councilmen's votes elected. The candidate receiving a majority of the votes of the council was, in a quo warranto proceeding, properly held to be entitled to such office.
No. 17088. MAY 9, 1950.
The charter of the Town of Kite (Ga. L. 1890-91, p. 755) provides for a mayor and five aldermen, to be elected by the people. The mayor and council are directed by the charter to elect a clerk. The charter provides that the "mayor and council shall have power to make any and all bylaws, rules, and regulations or ordinances necessary for the government of the town, which are not inconsistent with the laws and constitution of this State."
H. J. Claxton as relator brought his petition against L. L. Palmer, praying that the State's writ of quo warranto issue, that the respondent be ousted from the office of clerk and treasurer of the Town of Kite, and that title to such office be declared to be in the relator. The relator alleged: that the respondent, under a prior election held in 1949, held the office of clerk and treasurer; that, at a regular meeting of the mayor and council of the Town of Kite held on January 3, 1950, it was their duty to elect a clerk and treasurer for the term of one year to succeed the respondent; that at said meeting, the mayor presiding and all five members of council being present, the names of the relator and the respondent were submitted as candidates for said office; that three members of council voted for the relator, and two for the respondent; but that, immediately after the result was announced, the mayor, who was presiding, claimed that he had a right to vote in such election, and did vote, thus making "what said mayor called a tie, he voting for respondent, then after so voting, said mayor claimed there was a tie, then he voted again for respondent, as he claimed he then had a right to do to break the tie caused by his voting as aforesaid," and the mayor claimed that the respondent had been elected to said office. It was alleged that the mayor had no right to vote at the election unless there was a tie, and council members having voted three to two for the petitioner, both votes of the mayor were illegal; and that the petitioner, having received a majority vote of the members of council, was lawfully elected clerk and treasurer. It was alleged that as the result of said illegal election the respondent is now holding said office.
The respondent in his answer relied on an ordinance of the Town of Kite, which provided: "The mayor shall have the general superintendence of the affairs of the city; shall preside in all meetings of the council; vote in all elections for officers, and give the deciding vote in all questions in case of a tie." He alleged that a majority of council did not vote for the petitioner, but that the petitioner and the respondent each received three votes, which resulted in no election, and since the respondent was elected in 1949 to the office for one year or until his successor was elected and qualified, he was entitled to hold the office until a successor was elected. He alleged in his response that the mayor had a right to vote under the ordinance quoted above. He denied the allegation of the petition that, after the mayor had announced the result of the election as being three for the petitioner and two for the respondent, he, the mayor, then again voted for the respondent, to break the tie vote.
It appears from the briefs of counsel that the office of treasurer was created by ordinance and combined with the charter office of clerk.
The case was submitted to the trial judge by agreement, to be heard and determined by the court as to all issues of fact and law, without the intervention of a jury, upon the petition and the response. The court entered an order declaring that the relator had been regularly elected clerk and treasurer, and ordered the respondent to vacate the office. Error is assigned on this judgment.
1. As to the manner in which the election for the office of clerk and treasurer was held, the answer of the respondent raised an issue of fact. The case having been submitted to the trial judge by agreement of the parties for a final determination upon all issues of fact as made by the pleadings, and he having found in favor of the relator, it is presumed that the court found as a matter of fact that, after the members of council had voted three to two in favor of the relator, and after the result of the election had been announced, the mayor cast a vote for the respondent, and then broke the tie by voting again for the respondent and declaring him to have been duly elected. This issue of fact was thus resolved in favor of the plaintiff.
2. The sole remaining issue of law is: did the mayor have the right, after announcing that a majority of council had voted for the relator, to vote for the respondent and thereby create a tie vote, and again vote for the respondent to break the tie? Unlike the charters involved in the cases of Gostin v. Brooks, 89 Ga. 244 ( 15 S.E. 361), and Johnson v. Arnold, 176 Ga. 910 ( 169 S.E. 505), the charter of the Town of Kite is silent as to when the mayor can vote in the election of officers and the enactment of ordinances. We are of the opinion that the provision of the charter that the "clerk shall be elected by the mayor and council" has reference to the name and style of the corporate governing body. Gostin v. Brooks, supra; Akerman v. Ford, 116 Ga. 473 (3) ( 42 S.E. 777). Under the charter the office of mayor is separate and distinct from the office of councilman, whereby the mayor is elected to his office, and the five councilmen are elected to their offices, by the people. So, the mayor is not a member of the council, and where he presides over a meeting of council, he does so as mayor and not as a member of council.
Where the mayor is a member of council and presides over their deliberations, unless expressly forbidden by law it is generally held that he may vote on all questions as a member; and where the charter or a valid rule of council gives him a casting vote in the event of a tie, he may vote a second time. 2 McQuillin on Municipal Corporations (2d, ed.) 550-552, § 620; Whitney v. Common Council of the Village of Hudson 69 Mich. 189 ( 37 N.W. 184); Simpson v. Markham, 175 N.C. 135 ( 95 S.E. 106). Compare Cummings v. Robinson, 194 Ga. 336 ( 21 S.E.2d 627). But where he is merely an executive or presiding officer and not a member of council, his vote cannot be counted in determining whether or not there is a majority vote, "nor can he vote so as to make a tie and then give the casting vote. . . Thus, for example, in the election of officers the casting vote may be given only where there is an equal division of votes between the candidates." 2 McQuillin on Municipal Corporations (2d, ed.) 551-552. See also Johnson v. Arnold, 176 Ga. 910 (supra); Brown v. Foster, 88 Me. 49 ( 33 A. 662); Nelson v. Mott, 111 Wis. 19 ( 86 N.W. 569); McClain v. Church, 76 Utah 170 ( 289 P. 88); Bousquet v. Gleason, 78 Miss. 478 ( 29 So. 399).
Under the facts as found by the trial judge, the relator received a majority of the votes cast by the members of council, and the votes of the mayor, in making a tie and then breaking the tie in voting for the respondent, were without legal effect. When three members voted for the relator and two voted for the respondent, and the mayor announced the result, the election was final, and the relator, upon qualifying, was entitled to the office. Scofield v. Starr, 78 Conn. 636 ( 63 A. 512). See also Brewer v. Johnson, 184 Ga. 806 ( 193 S.E. 778).
The ordinance relied on by the respondent, which provides that the mayor shall "vote in all elections for officers; and give the deciding vote upon all questions in case of a tie," is ineffective in so far as it attempts to give the mayor a vote in the election of a clerk and treasurer where a majority of council have cast their votes for one person, for the reason that under the charter the mayor is not a member of council, and in such election he has only such rights as inhere in his position as presiding officer.
There was no error in the judgment of the trial court ousting the respondent from the office of clerk and treasurer of the Town of Kite and declaring that the relator had been duly elected to such office.
Judgment affirmed. All the Justices concur, except Duckworth, C. J., who dissents.