Opinion
16462.
FEBRUARY 14, 1949.
Petition for injunction. Before Judge Sloan. Union Superior Court. September 11, 1948.
Jack G. Tarpley, for plaintiffs.
G. A. Jones and Ben F. Carr, for defendants.
1. Where an office exists under the law, all that is required to make an officer de facto is that the individual claiming the office is in possession of it, performing its duties and claiming to be such officer under color of an election or appointment. It is not necessary that such election or appointment be valid, for that would make an officer de jure.
2. Under the law authorizing the sale of malt beverages in Georgia, it is not required that an election be first held to authorize the sale where the governing body of a municipality grants a license for the retail sale or distribution of beer within the corporate limits of such municipality.
3. The trial court erred in refusing to enjoin the municipal authorities of the Town of Blairsville from levying and collecting ad valorem taxes at a higher rate than that authorized by its charter.
No. 16462. FEBRUARY 14, 1949.
Jack G. Tarpley and 55 other persons, as plaintiffs, alleging themselves to be residents, taxpayers, and voters residing in the City of Blairsville, brought their petition against Ben F. Carr, A. R. Rogers, E. S. Dockery, Tom Candler Jr., R. C. Christopher, and Robert E. Colwell, who, it is alleged in the petition, "constitute the Mayor and Council and governing body of the said City of Blairsville," and against A. J. (Jake) Plott and A. R. Sweat, who are alleged to be citizens of Blairsville, as defendants; and in the original petition it is alleged that the defendant "Mayor and Council," in June, 1948, authorized and directed the issuance of a license to permit the other defendants to engage in the business of a retail beer store, granting to those defendants permission to buy beer for resale and to sell the same at retail within the city limits of Blairsville. It is further alleged that the defendants, Plott and Sweat, have not obtained a license from the licensing authorities of Union County. It is further alleged that some time during the year 1937 an election was held within the City of Blairsville to determine whether the sale of beer should be permitted within the corporate limits of the City of Blairsville, at which election the majority of the voters participated in the election, voting against beer; and that the question has not since been submitted to the voters; that the mayor and councilmen are without legal right to authorize the sale of beer in the city without the applicants first having obtained a license from the authorities of Union County, and without first submitting the question to the qualified voters of the City of Blairsville; that the plaintiffs have petitioned the mayor and council to deny the application for license and to call an election for the purpose of determining the question; but that the defendants have denied the petition, and persist in their plan and purpose to issue the license. The plaintiffs allege that they are without remedy at law, and apply to a court of equity to enjoin the issuance of a license by the city and to restrain the other defendants from engaging in the business of the sale of beer, and the original petition prayed: (1) that a rule nisi issue, calling upon the defendants to show cause why they should not be permanently enjoined from issuing a license for the sale of beer and from engaging in that business in the City of Blairsville; (2) that at said hearing the defendants and each of them, or any one acting for them, be permanently enjoined from issuing the license or engaging in the business of the sale of beer until the same shall be authorized by an election held in said city for that purpose; (3) that the defendants be temporarily enjoined from issuing such license and from engaging in the business of selling beer until a hearing can be had; and (4) for such other relief as they may be entitled to receive in the premises.
Upon the filing of the petition the trial court, on June 11, 1948, issued a rule nisi setting the matter for a hearing on June 19, 1948, and temporarily restraining the defendants; but on June 14, 1948, this restraining order was revoked and set aside until further order of the court.
To this petition the defendants filed their answer, in which they admitted that a permit had been granted to the defendants, Plott and Sweat, to retail beer in the City of Blairsville, and alleged that the permit had been granted according to law, and they either denied or alleged that for want of sufficient information they could neither admit nor deny all other allegations of the petition.
The defendants also interposed a demurrer to the petition as originally filed, but this demurrer does not appear to have been insisted upon, and no ruling thereon by the trial court appears.
On the date set for the interlocutory hearing, the plaintiffs offered an amendment to the petition, alleging that the ordinance authorizing the sale of beer in the City of Blairsville was null and void, for the reason that the defendants named as mayor and councilmen were not the lawfully elected or appointed mayor and council, because they were acting under and by virtue of a city charter known and identified as "Blairsville City Charter," appearing in Georgia Laws 1946, pages 340 to 406 inclusive; that said act was violative of paragraph 15, section 7, article 3 of the Constitution of Georgia, in that the enrolled act did not have attached thereto or made a part thereof proper notice of intention to pass the same as required by the constitutional provision referred to, and was therefore null and void; and that any dealings by the mayor and councilmen elected and acting under and by virtue of the authority of said act were null and void; and prayed that the amendment be allowed, that the defendants be enjoined and restrained as prayed in the original petition, and that an order issue requiring the defendants to appear and show cause why a permanent injunction should not be granted as prayed. The court allowed the amendment subject to demurrer and set a hearing thereon for July 3, 1948. The record is silent as to what occurred on July 3, but on September 1, 1948, the plaintiffs filed a second amendment to their original petition, alleging that the defendants named as Mayor and Councilmen of the City of Blairsville were attempting to exercise power and authority as such by passing ordinances under the unconstitutional charter, and were collecting money and were seeking to collect money from taxes and licenses from the plaintiffs and other citizens and taxpayers, without warrant and authority, and are obligating and seeking to obligate the City of Blairsville for the payment of sums of money contrary to law; and praying that the said charter be adjudged and declared unconstitutional, null and void, and that the defendant mayor and councilmen be enjoined and restrained from collecting and receiving taxes and other money belonging to the city, from disbursing any money belonging to the city, and from passing and enforcing any ordinances, and generally from exercising the business and duties of a mayor and councilmen.
To this amendment the defendants filed an answer denying the allegations thereof, and alleging that they had not forced any one to pay any taxes and had not threatened to force any one to pay any taxes, and that they had issued no tax execution, and praying that the petition be dismissed and the prayers thereof denied.
On September 11, 1948, the petition as thus amended came on for a hearing, and the plaintiffs introduced evidence, consisting of an affidavit of two of the plaintiffs; a certain notice to another of the plaintiffs dated August 20, 1948, signed by the mayor and requesting payment of 1947 taxes; a certain business license issued by the city on March 29, 1948; and a certified copy of the charter of the City of Blairsville referred to in the petition. It is recited in the bill of exceptions that the defendants introduced no evidence, and that after argument of counsel the trial judge passed an order enjoining the defendants from authorizing or engaging in the sale of beer in the City of Blairsville, but expressly reserved decision on the question of constitutionality of the charter of the city.
On September 15, 1948, the defendants filed an amendment to their answer, in which they alleged that the mayor and councilmen were elected to fill their respective offices at an election held in May, 1946, in which election most, if not all, of the resident plaintiffs participated; that at another election held in the city for the purpose of electing said officers part of these same officers were re-elected to the same offices they now hold; that the defendants have been recognized as such officers by the people of Blairsville from the time they were first elected until now; that they have exercised the functions of their said offices, have never ceased or refused to act as officers; that the functions of these offices have been performed by the defendants in good faith, and their right so to act has never been questioned by any person who claims the right to hold these offices; and that the plaintiffs, by their petition, were making the first attack on the right of the defendants to hold the offices of mayor and councilmen. It is further alleged in this answer that, if the courts should hold that the present charter of the City of Blairsville is void and that these officers are not de jure officers, then and in that event the defendants claim that they are officers de facto, and have the right to exercise all of the powers given them as said officers by the act of 1908 (Ga. L. 1908, p. 414), which is of force and effect if the present charter is declared void. The defendants prayed: for a rule nisi directed to the plaintiffs, requiring them to be and appear at a time and place named by the court to show cause why the prayers of the defendants should not be granted; and (a) that upon the hearing all of the equity and relief permissible under the pleadings of the case be afforded the defendants; (b) that in the event the court holds the present charter invalid, the charter of 1908 be declared by the court to be of full force and effect; (c) that, in the event the court should determine that they are not officers de jure, the court pass an order declaring them to be officers de facto, with the right to act in all particulars and with the same degree of authority with respect to their conduct of the offices as if they were officers de jure, with the right to act until their successors are elected and qualified; and (d) that the restraining order previously granted by the court be dissolved or vacated.
Upon the filing of this amendment, the court provided for service of a copy thereof on the plaintiffs or their counsel, and set the matter for a hearing on September 17, 1948.
It is recited in the bill of exceptions that on this hearing no additional evidence was introduced, and that after argument of counsel the court entered its order and judgment as follows: "The above-stated case coming on before me for hearing this date upon an amendment filed by defendants, after hearing argument of counsel, it is ordered, adjudged and decreed that the charter of the City of Blairsville as described in plaintiffs' petition be, and it is hereby adjudged unconstitutional, null and void, but that the defendants named as Mayor and Council of the City of Blairsville are de facto officers, and as such are empowered to enforce the ordinances of said City of Blairsville; and to discharge all duties of such officers.
"It is further ordered that the prayers of plaintiffs for injunction be, and they are hereby denied, and the restraining order heretofore granted is dissolved and vacated; it is further ordered that said restraining order shall, however, remain in full force and effect until plaintiffs shall have a reasonable time in which to file a bill of exceptions in said case, and upon the filing of said bill of exceptions, this order shall operate as a supersedeas until said case shall have been determined by the Supreme Court of the State of Georgia.
"Granted at chambers at Blairsville, Georgia, this the 17th day of September, 1948."
To so much of this order as denied the injunction prayed for by the plaintiffs and as adjudged the defendant mayor and councilmen to be de facto officers the plaintiffs excepted.
1. It will be seen by reference to the foregoing statement of facts that this case, which started out as an effort to enjoin an issuance of a license to sell beer, has, by the various amendments to the petition and answers, grown to include several additional issues.
It is conceded by counsel for both the plaintiffs and the defendants that the judgment of the trial court holding the charter of the City of Blairsville, as contained in the acts of 1946, to be unconstitutional and void, is correct, and no exception is taken thereto by either the plaintiffs or the defendants. Smith v. McMichael, 203 Ga. 74 ( 45 S.E.2d 431); Cox v. Hapeville, 203 Ga. 263 ( 46 S.E.2d 122); Smith v. Augusta, 203 Ga. 511 ( 47 S.E.2d 582). Counsel for the defendants in their brief state: "The void act of the legislature attempting to create a new charter for Blairsville has no place in this record or the record of the case. It started as nothing and ended as nothing."
It would seem that the first question which must be determined is, whether or not the trial court erred in adjudging the defendant mayor and councilmen to be de facto officers, and, as such, authorized to discharge the duties of such officers of the Town of Blairsville under its charter of 1908. If this were the only question presented, under the decision of this court in Rogers v. Croft, 203 Ga. 654 ( 47 S.E.2d 739), the remedy of the plaintiffs would be by writ of quo warranto; but in the instant case the plaintiffs are also seeking injunctive relief against the issuance of a beer license, and against the collection of ad valorem taxes of one dollar per hundred dollars valuation sought to be imposed by the city, because under the charter of the Town of Blairsville of 1908 (Ga. L. 1908, p. 414), as amended by Ga. L. 1909, p. 565, the tax rate is limited to fifty cents on the hundred dollars. Thus there are other equitable questions here involved, and the writ of quo warranto would not afford adequate relief.
As pointed out by this court in Herrington v. State, 103 Ga. 318, 319 ( 29 S.E. 931): "There is an irreconcilable conflict of authority upon the proposition as to whether or not it is possible that the doctrine of an officer de facto can be applied to any case without pre-supposing the existence of an office de jure"; but in that case this court quoted approvingly from Norton v. Shelby County, 118 U.S. 425 ( 6 Sup. Ct. 1121, 30 L. ed. 178), as follows: "While acts of a de facto incumbent of an office lawfully created by law and existing are often held to be binding from reasons of public policy, the acts of a person assuming to fill and perform the duties of an office which does not exist de jure can have no validity whatever in law. An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed." See also, to the same effect, Dennison Manufacturing Co. v. Wright, 156 Ga. 789, 797 ( 120 S.E. 120). It would thus seem that the defendant mayor and councilmen could not be held to be de facto officers of the offices sought to be created under and by virtue of the unconstitutional charter of 1946, since it would not have the effect of creating any de jure offices. The judgment of the trial court holding that the mayor and all five of the councilmen are de facto officers was erroneous to the extent of two of the councilmen, for the previous charter of 1908 (Ga. L. 1908, p. 414), as amended by the act of 1909 (Ga. L. 1909, p. 565), provided for a mayor and only three councilmen. Thus as to two of the councilmen there was no lawful office which they could hold. The trial court properly held that the mayor and three of the councilmen were de facto officers, and, as such, were empowered to enforce the ordinances of the Town of Blairsville and to discharge all of the duties of such offices in accordance with the powers conferred by the charter of 1908 as amended, for that act did create the office of mayor and three councilmen. There are, therefore, de jure offices for the mayor and three councilmen to fill. The fact that they went into office by virtue of an election held under the provisions of the unconstitutional act of 1946 would not deprive them of their status as de facto officers. In Norton v. Shelby County, 118 U.S. 425, 444 (supra), above referred to, it is held: "Where an office exists under the law, it matters not how the appointment of the incumbent is made, so far as the validity of his acts are concerned. It is enough that he is clothed with the insignia of the office and exercises its powers and functions. . . All that is required when there is an office to make an officer de facto, is that the individual claiming the office is in possession of it, performing its duties and claiming to be such officer under color of an election or appointment, as the case may be. It is not necessary that his election or appointment should be valid, for that would make him an officer de jure. The official acts of such persons are recognized as valid on grounds of public policy, and for the protection of those having official business to transact." Such has also been the ruling of this court in Hawkins v. Jonesboro, 63 Ga. 527 (1), where it is held: "Though a statute require all voters to be registered, and none are registered, yet, if an election be held, and certain town officers provided for by law be elected by the votes cast, and the persons thus elected enter upon and exercise their functions under color of such election, their predecessors yielding to their supposed right, they are officers de facto, and until displaced, may exercise all the powers of officers de jure." See also Brown v. Flake, 102 Ga. 528 ( 29 S.E. 267); Tucker v. Roberts, 151 Ga. 753 ( 108 S.E. 222); Clements v. Powell, 155 Ga. 278 (6) ( 116 S.E. 624); Smith v. Meador, 74 Ga. 416 (58 Am. R. 438); Morris v. Smith, 153 Ga. 438 ( 112 S.E. 468).
2. The trial court did not err in refusing to enjoin the defendant mayor and councilmen from issuing a license for the sale of beer to the other two defendants, nor in failing to enjoin these two defendants from engaging in the business of retail sale of beer in the municipality of Blairsville under and by virtue of such a license. Under the law authorizing the sale of malt beverages in Georgia, it is not required that an election be first held to authorize its sale, but it is only required that, if one proposes to carry on the business of the retail sale or distribution of beer within the corporate limits of a municipality, "the applicant for license shall pay to the proper authority, to be designated by the governing body of such municipality, such annual license fee as may be fixed by the said governing body . . and it is further provided that, when any of the above described businesses are licensed by municipal authority, that no county license fee shall be required by county authority." Code, § 58-716; Harvin v. Holcomb, 181 Ga. 800 ( 184 S.E. 603); McKown v. Atlanta, 184 Ga. 221, 222 (1), ( 190 S.E. 571); Collier v. State, 54 Ga. App. 346 ( 187 S.E. 843).
3. Under the charter of the Town of Blairsville of 1908 as amended, and under the provisions of the Code, § 92-4101, the Town of Blairsville was limited in the collection of ad valorem taxes to one-half of one per cent upon the value of property within said corporation, or to fifty cents per hundred dollars valuation, and under the charter of 1946 the rate was fixed at "not exceeding one dollar on the hundred." It was alleged in the petition, and the evidence adduced by way of affidavit showed, that the defendant mayor and councilmen were seeking to collect taxes at the rate fixed in the charter of 1946. Since the trial court held this charter to be invalid, it should have enjoined the defendants from undertaking to collect taxes based upon the rate fixed by that charter. Colquitt Live Stock Supply Co. v. Colquitt, 146 Ga. 579 ( 91 S.E. 555).
Judgment affirmed in part and reversed in part. All the Justices concur, except Bell, J., who dissents; and Duckworth, C. J., and Candler, J., disqualified.