Minter v. Lane

Hill, J. (After stating the foregoing facts.) The charter of the City of Monticello, Georgia, provides that no person shall be eligible to the office of mayor or councilman of said city who has not been a resident thereof for one year or more continuously next preceding his election, and who is not a qualified elector to vote in the city elections of said city. Acts 1901, p. 565 et seq.; Code of the City of Monticello, § 14. The charter also provides that “All persons who shall have paid taxes legally imposed and demanded by the city authorities, except taxes for the year in which the election is held, and who have been bona fide residents of said city for sixty days previous to the time when the election is held, and who are qualified to vote in the County of Jasper for members of the General Assembly of Georgia, shall be considered electors and be entitled to vote in said city elections, and no others shall be qualified to vote.” Acts 1901, p. 565 et seq.; Code of Monticello, § 6. The charter of the City of Monticello also provides that the mayor and councilmen shall be elected for a period of one year, and until their successors are elected and qualified. . Code of Monticello, § 8; Acts 1901, p. 565 et seq. There is no controversy as to the facts of the present case, and the only issue is, as stated by counsel for plaintiff in error, did [761] the court err, under the facts, in refusing the prayer of the petition? Undoubtedly the respondent was not eligible to election as a member of council to succeed himself, under the pleadings, and he obviously recognized that fact by failing to take the oath of •office and qualifying himself as such after the election. Then the question arises, was the respondent entitled under his former election as councilman in 1929, about which there is no question raised, to hold over in office until his successor is elected and qualified? It is to be assumed that respondent was legally qualified to hold office under his former election, and that is conceded. By the charter of the City of Monticello it is provided that the mayor and aldermen shall be elected for the period of one year, and until their successors are elected and qualified. The term of office was changed by an act of the legislature from the first Tuesday in February of each year to the first Tuesday in January of each year. It is unnecessary to go into the qualifications of mayor and aider-men, as stated, because no question is raised here as to the respondent’s eligibility to hold the position to which he was elected in the fall of 1929, and which he contends he is entitled to hold until his successor is elected and qualified. The charter of the City of Monticello provides that if there is any vacancy in the office of alderman, the mayor and aldermen of said city shall fill the vacancy by an election, etc. No vacancy, has been declared, so far as the record shows, and no election has been held to fill such vacancy, by a person legally eligible to hold such office; and therefore the conclusion is reached that the respondent, W. A. Lane, is entitled to act as a member of the city council of Monticello until his successor has been elected and qualified, as provided by law. There was no error in passing the order to which exception is taken. See Lee v. Byrd, 169 Ga. 622 (151 S. E. 28). Judgment affirmed. All the Justices concur, except Russell, G. J., and Gilbert, J., who dissent.