Patten v. Miller

25 Citing cases

  1. Partain v. Maddox

    227 Ga. 623 (Ga. 1971)   Cited 15 times
    Holding that an undated letter of resignation demanded by the Governor before the official's appointment to a term of office was invalid

    This court has held that "A resignation of a public office, to be effective, must be made with the intention of relinquishing the office, accompanied by the act of relinquishment." Patten v. Miller, 190 Ga. 123, 141 ( 8 S.E.2d 757). (Emphasis supplied.)

  2. Barrow v. Beskin

    308 Ga. 660 (Ga. 2020)   Cited 24 times
    Involving OCGA § 9-6-24

    See OCGA § 45-5-1 (b) ("Upon the occurrence of a vacancy in any office in the state, the officer or body authorized to fill the vacancy or call for an election to fill the vacancy shall do so without the necessity of a judicial determination of the occurrence of the vacancy." (emphasis added)); Patten v. Miller , 190 Ga. 123, 142, 8 S.E.2d 757 (1940) ("There must be a vacancy before the power or duty of filling it arises."). In concluding that Justice Blackwell's office was already vacant, the trial court found "persuasive" an unofficial Attorney General opinion issued in 1999 that said, "[W]ith the offer and acceptance of the resignation ..., the incumbent's office has become vacant as a matter of law ... notwithstanding the fact that the incumbent will continue to lawfully, physically occupy the office and exercise its duties and responsibilities until [the effective date of the resignation]."

  3. Smith v. Gwinnett County

    268 Ga. 179 (Ga. 1997)   Cited 8 times
    In Smith v. Gwinnett County, 268 Ga. 179 (486 S.E.2d 151) (1997) (Smith I), we affirmed the trial court's grant of a preliminary injunction barring the Smiths from undertaking any further construction activity on the property, its subsequent finding that the Smiths were in criminal contempt of the injunction, and its eventual order that the County restore the property at the Smiths' expense.

    To say that, by virtue of the consent order, defendants were no longer enjoined from destroying the surrounding property defies the plain language of the consent order — and common sense. "It is the spirit more than the letter of the injunction to which obedience is required." Patten v. Miller, 190 Ga. 123, 159 ( 8 S.E.2d 757) (1940). Besides, defendants were bound to obey the preliminary injunction at their peril.

  4. Belcher v. Harris

    228 Ga. 387 (Ga. 1971)   Cited 3 times

    All allegations of the complaint, save the one relating to failure to call meetings of the executive committee during 1970, relate to alleged misconduct on the part of the chairman and are not grounds to show abandonment, and a charge of misconduct is not ground for the issuance of a writ of quo warranto. See McDonough v. Bacon, 143 Ga. 283 ( 84 S.E. 588); Patten v. Miller, 190 Ga. 123 (1c) ( 8 S.E.2d 757). The complaint, as to the chairman, presents a fact question as to abandonment.

  5. Bailey v. Dobbs

    183 S.E.2d 461 (Ga. 1971)   Cited 11 times

    Code § 64-101 provides: "All official duties should be faithfully performed; and whenever, from any cause, a defect of legal justice would ensue from a failure or improper performance, the writ of mandamus may issue to compel a due performance, if there shall be no other specific legal remedy for the legal rights." For authorities to the effect that mandamus will lie to compel reinstatement of employees illegally removed or discharged, see: Blount v. Parham, 184 Ga. 515 ( 191 S.E. 911); City of Macon v. Bunch, 156 Ga. 27 (1c) ( 118 S.E. 769); Patten v. Miller, 190 Ga. 123, 147 ( 8 S.E.2d 757); McAfee v. Bd. of Firemasters of Atlanta, 186 Ga. 262 (1, 2) ( 197 S.E. 802); Holder v. Anderson, 160 Ga. 433 (1) ( 128 S.E. 181); Akerman v. Bd. of School Commrs. of Cartersville, 118 Ga. 334 ( 45 S.E. 312); McCutcheon v. Smith, 199 Ga. 685 ( 35 S.E.2d 144); Waring v. Ga. Medical Soc., 38 Ga. 608 ( 95 AD 408); Talmadge v. Cordell, 167 Ga. 594 (1) ( 146 S.E. 467); Jones v. Nelson, 202 Ga. 732 (1) ( 45 S.E.2d 62); 52 AmJur2d 614, Mandamus, § 287;4 McQuillin on Municipal Corporations 457, § 12.269c. Under the foregoing authorities, therefore I submit that a mandamus nisi was demanded on the ground of the failure of the defendants to comply with the mandatory provisions of the city's charter, which worked to the injury or prejudice of appellants. According to the above authorities, the question of the legality of the employee's discharge is not now moot, as the majority holds.

  6. Henderson v. Maddox

    179 S.E.2d 770 (Ga. 1971)   Cited 1 times

    Rayle Electric Membership Corp. v. Cook, 195 Ga. 734 (2) ( 25 S.E.2d 574). This court cannot insert provisions into the Constitution where none exist. "In Patten v. Miller, 190 Ga. 123, 139 ( 8 S.E.2d 757), it was held: `Among the rights of citizens, as declared in the Code, are the right to hold office unless disqualified by the Constitution and laws, and the right to appeal to the courts. Code § 79-205 ... So the right of a citizen to hold office is the general rule, ineligibility the exception; and therefore a citizen may not be deprived of this right without proof of some disqualification specifically declared by law.

  7. Mulcay v. Murray

    136 S.E.2d 129 (Ga. 1964)   Cited 4 times

    In the case of Patten v. Miller, 190 Ga. 105, 117, supra, this court dealt with a similar situation, and held that where the Governor through a void order removed a member of the highway board from office, no vacancy was created and a subsequent order of the Governor appointing a successor to the member of the board was likewise void. The pronouncement is made of the principle in Patten v. Miller, 190 Ga. 123 (1f, g) ( 8 S.E.2d 757): "The provision of the Constitution ( Code § 2-2614) to the effect that when any office shall become vacant by death, resignation, or otherwise, the Governor shall have power to fill such vacancy, confers no power to create a vacancy by any declaration or judgment that one exists; there must be an actual vacancy before the power or duty of filling it arises. An actual vacancy being a condition precedent to the authority or jurisdiction to appoint, the question of its existence is subject to inquiry, at the instance of the person whose tenure is challenged, should he desire to make an issue of it in a judicial proceeding.

  8. Hill v. Johnson

    105 S.E.2d 309 (Ga. 1958)   Cited 3 times

    The ruling therein in regard to the unconstitutionality of the statute has been followed by a majority of this court in some cases, and has been disapproved in others. For example, see Gray v. McLendon, 134 Ga. 224, 246 ( 67 S.E. 859); City of Macon v. Anderson, 155 Ga. 607, 608 (3) ( 117 S.E. 753); Walton v. Davis, 188 Ga. 56 ( 2 S.E.2d 603). The Coleman case has been cited in a number of full-bench decisions declaring the principle that a public officer, with a fixed term of office, is not subject to removal except upon cause shown, with notice and an opportunity to be heard. Ledbetter v. Reese, 148 Ga. 633 ( 97 S.E. 669); Talmadge v. Cordell, 167 Ga. 594, 595 (5) ( 146 S.E. 467); Patten v. Miller, 190 Ga. 123, 140 ( 8 S.E.2d 757). The rulings in Coleman v. Glenn, 103 Ga. 458, supra, do not authorize the grant of an injunction to the petitioner in the present case.

  9. McLendon v. Everett

    55 S.E.2d 119 (Ga. 1949)   Cited 16 times
    In McLendon v. Everett, 205 Ga. 713, 717 (55 S.E.2d 119), the late Justice Head quoted approvingly the rule set forth in 50 AmJur 49, Statutes, § 26, that "a statutory provision is generally regarded as directory where a failure of performance will result in no injury or prejudice to the substantial rights of interested persons, and as mandatory where such injury or prejudice will result.

    The provisions of sections 3 and 10 of the act of 1943 relate solely to the conduct of the members of the board (and fulltime employees) after appointment, and section 10 does not either expressly, or by inference, by any of its terms, purport to deal with the qualifications of a member of such board at the time of his appointment. In Pattern v. Miller, 190 Ga. 123, 139 ( 8 S.E.2d 757), it was held: "Among the rights of citizens, as declared in the Code, are the right to hold office unless disqualified by the constitution and laws, and the right to appeal to the courts. Code, § 79-205.

  10. Jones v. Nelson

    45 S.E.2d 62 (Ga. 1947)   Cited 2 times

    son, ante, and is controlled by the rulings made in that case except as to certain procedural questions, with respect to which it is here ruled as follows: 1. The elected county superintendent, having been unlawfully removed from office by the county board of education, could maintain the present action against the members of the board for the writ of mandamus to compel them to recognize him as the person entitled to hold the office and to discharge the duties thereof. The separate suit for the writ of quo warranto against the person purportedly elected by the board as his successor did not afford a complete and adequate remedy as against the board, since in that case the complainant or relator could only recover the office from the respondent and could not obtain an order requiring the members of the board to recognize him. See, in this connection, Akerman v. Board of School Commissioners of Cartersville, 118 Ga. 334 ( 45 S.E. 312); Holder v. Anderson, 160 Ga. 433 ( 128 S.E. 181); Patten v. Miller, 190 Ga. 123 (4), 146 ( 8 S.E.2d 757). The instant case is distinguished by its facts from Bonner v. State ex rel. Pitts, 7 Ga. 473, wherein the mandamus was sought, not against other officers, but solely against a rival claimant who was alleged to have assumed the duties of the office without authority of law. 2.