Opinion
17001.
MARCH 13, 1950.
Quo warranto. Before Judge Moore. Fulton Superior Court. December 9, 1949.
Daniel Duke, for plaintiff in error.
Houston White, contra.
The writ of quo warranto can not be used in this State for the purpose of merely obtaining an advisory opinion as to the termination of a respondent's term of office as Commissioner of Roads and Revenues of Fulton County, and, accordingly, the trial court did not err in rendering a judgment in favor of the respondent.
No. 17001. MARCH 13, 1950.
On November 19, 1949, C. C. Bowling, as a citizen and taxpayer, presented his application for leave to file an information in the nature of quo warranto, to oust R. L. (Shorty) Doyal from the office of Commissioner of Roads and Revenues of Fulton County, on the ground that Doyal had been elected in November, 1948, under the provisions of a law of special application to Fulton County (Ga. L. 1946, p. 246), and that the special act is unconstitutional and void for the reason that the enrolled copy did not have attached thereto the certificate or affidavit of advertising required by article 3, section 7, paragraph 15 of the Constitution of 1945 (Code, Ann., § 2-1915). Other allegations were: that, under the original act (Ga. L. 1880, p. 508), creating the office in question, as amended, the respondent's term of office began on January 1, 1947, and ends on December 31, 1950; but that he is claiming title to the office by virtue of the 1948 election and the commission issued thereunder for a new four-year term beginning January 1, 1949, and ending December 31, 1952; and also, that public interest is involved for the reason that the term of office which the respondent illegally holds expires on December 31, 1950, and a successor to the office, according to the amendatory act of 1889 (Ga. L. 1889, p. 1110), should be elected at the general election in November, 1950. However, unless the court declares the election of the respondent, under which he claims to have derived his title to the office, and the commission under which he now assumes to occupy the office, to be void and unconstitutional, the respondent will continue to occupy the office illegally and without any title thereto, and he can continue to delay the calling of an election to name his successor beyond November, 1950, and thereby illegally continue to assume the duties of said office. The information contained prayers: that the act of 1946, supra, be declared unconstitutional; that the election of the respondent in the general election of 1948 be declared void; that the commission under which the respondent now assumes to act be canceled; and that the respondent be ousted from said office. The trial court issued an order granting leave to file the application, and required the respondent to show cause why the prayers should not be granted.
To the information the respondent filed his answer, which admitted that he was discharging the duties of the office as one of the Commissioners of Roads and Revenues of Fulton County, denied material allegations of the information, and averred among other things that he was duly elected to the office in the general election of 1946, and re-elected in the general election of 1948.
The court, passing upon all issues of fact by consent of the parties without the intervention of a jury, found in favor of the respondent. The exception is to this judgment.
The Code § 64-201, declares: "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." This language appears as § 3135 in the Code of 1863, and has been carried forward in each of the succeeding Codes.
Counsel for the plaintiff in error concedes that the respondent could not have been ousted at the time the suit was filed, but insists that, under the common law of England, the writ of quo warranto was for the purpose of making the terms and tenures of public officials fixed and certain, so that no cloud or ambiguity would surround the various offices, either as to titles or length of term; and that, in using the above language in the Code of 1863, it was not intended to restrict the use of the remedy to the cases therein mentioned, nor to act as a limitation upon the State's prerogative, acting through its courts in proper cases, to define and make certain the terms of public officials and to fix and determine the duration of their terms of office.
This is an effort to obtain, in a quo warranto proceeding, an advisory opinion as to the termination of the respondent's term of office. Irrespective of whether under the common law of England the writ of quo warranto was used to define and limit a respondent's term of office, such an advisory opinion could not have been rendered in a quo warranto proceeding brought under the Code of 1863, for the reason that, prior to passage of the Declaratory Judgment Act (Ga. L. 1945, p. 137; Code, Ann. Supp., § 110-1101 et seq.), this court had consistently held: "A declaratory action is not maintainable in this state." Southern Ry. Co. v. State, 116 Ga. 276 (2) ( 42 S.E. 508); Fowler v. Fowler, 159 Ga. 239 ( 125 S.E. 495); Gurr v. Gurr, 198 Ga. 493 (3) ( 32 S.E.2d 507). The present quo warranto proceeding does not allege the essentials of a declaratory-judgment proceeding under the above-mentioned act of 1945.
Furthermore, the issue in a quo warranto proceeding is the title of the incumbent to the office from which he is sought to be ousted. Sweat v. Barnhill, 170 Ga. 545, 549 ( 153 S.E. 364); Center v. Arp, 198 Ga. 574, 575 ( 32 S.E.2d 308). "The State is concerned only with the usurpation. It takes no part in the controversy further than to have the office declared vacant and the usurper ousted." Holmes v. Sikes, 113 Ga. 580, 583 ( 38 S.E. 978).
Accordingly, the present quo warranto proceeding was premature, for the reason that, under the pleadings and evidence, the respondent could not have been ousted at the time the suit was filed, and the trial court did not err in rendering a judgment in favor of the respondent.
Judgment affirmed. All the Justices concur.