State ex rel. Hardwick v. Swearingen , 12 Ga. 23 ( 1852 )

By the Court.

Lumpkin, J.

delivering the opinion.

This was a petition for an information in form of a quo warranto 7 filed in behalf of William W. Hardwick, against Thomas A. Swearingen, charging him with wrongfully holding and exercising the offices of Clerk and Treasurer of the City of Oglethorpe, in the County of Macon, of this State ; and keeping out the said William W. who it is alleged is entitled to the said offices.

[1.] The gravamen of the complaint is, that Swearingen was not a corporator and resident within the City, either at the time-of his election or qualification ; and the applicant claims to have-the incumbent removed on this ground,, and himself inducted into the office, because he received the next highest number of votes.

We think the Mayor and Aldermen were right in commissioning the person having the highest number of legal votes, whether a corporator and resident within the City or not.

By the 32d section of the Act of incorporation, it is provided that “ a Clerk and Treasurer, shall be elected by the people of said City, qualified to vote for Mayor and Aldermen, on the 3d Saturday in February, 1852; and at each regular election on-the 1st Saturday in January thereafter, who shall serve for one year, or until his successor be elected and qualified. He is to-give bond in the sum of $3000, with two good securities, conditioned for the faithful performance of his duty, as Clerk and Treasurer of said City ; and shall take an oath, that he will, to the best of his skill and power, perform the duties of hisj office, without favor or affection.” Manuscript JJct.

By the charter, it will be perceived that no such restriction as that which is contended for, is imposed on the voters of this your.g and rapidly growing Town, in their selection of a suitable person to fill the offices of Clerk and Treasurer. They are at liberty to select from Macon, Columbus, or any other part of the State, the person in their judgment best qualified to discharge these functions.

[2.] Under no circumstances, could we permit the informant to be installed into these appointments, he not having received a majority of the legal votes of the City. Under such circumstances, if the incumbent be removed, a new election will be ordered.

[3.] These municipal corporations are the germs and miniature models of free government; and their internal police and administration, should not be interfered with for slight causes; not unless some great right has been withheld, or wrong perpetrated.

Judgment affirmed.