2020 Georgia Code
Title 9 - Civil Practice
Chapter 6 - Extraordinary Writs
Article 4 - Quo Warranto
§ 9-6-60. For What Purpose Quo Warranto May Issue; Who May Bring Action
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. It may be granted only after the application by some person either claiming the office or interested therein.
(Orig. Code 1863, § 3135; Code 1868, § 3147; Code 1873, § 3203; Code 1882, § 3203; Civil Code 1895, § 4878; Civil Code 1910, § 5451; Code 1933, § 64-201.)
Law reviews.- For article, "2016 Georgia Corporation and Business Organization Case Law Developments," see 22 Ga. St. Bar J. 58 (April 2017). For comment on Rogers v. Medical Ass'n, 244 Ga. 151, 259 S.E.2d 85 (1979), invalidating Georgia statute requiring Governor's appointments to Composite State Board of Medical Examiners (now Georgia Composite Medical Board) be made solely from nominees submitted by state medical society as an unconstitutional delegation of legislative authority to a private organization, see 29 Emory L.J. 1183 (1980).
JUDICIAL DECISIONS
Common law origins.
- The ancient common-law writ of quo warranto was a writ of right by the crown and was used to prevent the usurpation of an officer or franchise. Stone v. Wetmore, 44 Ga. 495 (1871); Skrine v. Jackson, 73 Ga. 377 (1884); Garrett v. Cowart, 149 Ga. 557, 101 S.E. 186 (1919).
Ancient writ of quo warranto has been materially modified by statute; there no longer exists a writ of right, but a prerequisite to the maintenance of an information in the nature of a quo warranto is leave of the court, granted on application therefor in the exercise of a sound discretion, to file the proposed information. Walker v. Hamilton, 209 Ga. 735, 76 S.E.2d 12 (1953).
An action seeking a writ of quo warranto is one of the special statutory proceedings subject to the Civil Practice Act. Anderson v. Flake, 270 Ga. 141, 508 S.E.2d 650 (1998).
This section expressly denies writ of quo warranto to person who is not either claiming office or interested therein. Collins v. Huff, 63 Ga. 207 (1879); Hardin v. Colquitt, 63 Ga. 588 (1879) (see O.C.G.A. § 9-6-60).
Under former Code 1933, § 64-201 (see O.C.G.A. § 9-6-60), writ of quo warranto applied only where the right of any person to "public office" was involved, and in former Code 1933, §§ 64-208 and 64-209 (see O.C.G.A. § 9-6-61) the remedy applied where civil officers were concerned. McDuffie v. Perkerson, 178 Ga. 230, 173 S.E. 151 (1933).
"Public office" within meaning of this section means office which has been lawfully created by the Constitution, by some statute, or by municipal ordinances passed in pursuance of legislative authority. Ritchie v. Barker, 216 Ga. 194, 115 S.E.2d 539 (1960) (see O.C.G.A. § 9-6-60).
Public office is right, authority, and duty conferred by law by which an individual is invested with some portion of the sovereign functions of the government, to be exercised by the individual for the benefit of the public. The warrant to exercise powers is conferred, not by a contract, but by the law. It finds its source and limitation in some act of expression of governmental power. McDuffie v. Perkerson, 178 Ga. 230, 173 S.E. 151 (1933).
Term "public office" embraces ideas of tenure and of duration or continuance. But it is held that these elements are not essential where the other qualifications of officers are present. Public employments are public offices, notwithstanding the instability of the tenure by which the incumbent holds. McDuffie v. Perkerson, 178 Ga. 230, 173 S.E. 151 (1933).
Public officer defined.
- An individual who has been appointed or elected in a manner prescribed by law, who has a designation or title given to the individual by law, and who exercises functions concerning the public, assigned to the individual by law, is a public officer. McDuffie v. Perkerson, 178 Ga. 230, 173 S.E. 151 (1933); Smith v. Mueller, 222 Ga. 186, 149 S.E.2d 319 (1966).
A juvenile court intake officer is a public officer for purposes of a quo warranto proceeding. Brown v. Scott, 266 Ga. 44, 464 S.E.2d 607 (1995).
Term "public officer" involves idea of tenure, duration, fees, or emoluments, and powers, as well as that of duty. These ideas or elements cannot properly be separated and each considered abstractly. All, taken together, constitute an office. McDuffie v. Perkerson, 178 Ga. 230, 173 S.E. 151 (1933).
Quo warranto denied challenging appointment of judges.
- Trial court's denial of the challenger's petition for a writ of quo warranto was affirmed because the newly created positions on the Georgia Court of Appeals qualified as vacancies under Ga. Const. 1983, Art. VI, Sec. VII, Para. III; thus, the governor had the authority to appoint judges to the vacancies created by amended O.C.G.A. § 15-3-1(a). Clark v. Deal, 298 Ga. 893, 785 S.E.2d 524 (2016).
Writ of quo warranto as to private entities appointment of board of ethics members.
- Trial court correctly granted the writ of quo warranto as to the four challenged members appointed to the county board of ethics by private entities as those appointments were unconstitutional as the private entities did not answer to the people as required by the Georgia Constitution and were, therefore, not authorized to wield the power to appoint public officials to the board. Delay v. Sutton, 304 Ga. 338, 818 S.E.2d 659 (2018).
Remedy by writ of quo warranto applies to all civil officers of this state, except the Governor. McDuffie v. Perkerson, 178 Ga. 230, 173 S.E. 151 (1933).
Quo warranto is a remedy to inquire into right of any person to any public office the duties of which the person is in fact discharging. Malone v. Minchew, 170 Ga. 687, 153 S.E. 773 (1930); Odom v. Jones, 176 Ga. 147, 167 S.E. 304 (1932); Sutton v. Adams, 180 Ga. 48, 178 S.E. 365 (1934).
Quo warranto has always been recognized as the proper procedure for inquiring into the right to hold public office. Conley v. Brophy, 207 Ga. 30, 60 S.E.2d 122 (1950).
Quo warranto suit may be brought to challenge eligibility to hold public office. White v. Miller, 235 Ga. 192, 219 S.E.2d 123 (1975).
Quo warranto affords adequate remedy for trial of title to public office; and where title is the sole issue, all equitable jurisdiction is ousted. Davis v. City Council, 90 Ga. 817, 17 S.E. 110 (1893); Stanford v. Lynch, 147 Ga. 518, 94 S.E. 1001 (1918); Davis v. Mathews, 169 Ga. 321, 150 S.E. 158 (1929); Hayes v. City of Dalton, 209 Ga. 286, 71 S.E.2d 618 (1952).
Issue in quo warranto proceeding is the title of incumbents to office from which they are sought to be ousted. Center v. Arp, 198 Ga. 574, 32 S.E.2d 308 (1944); Bowling v. Doyal, 206 Ga. 641, 58 S.E.2d 173 (1950).
Quo warranto granted to remove a city attorney improperly appointed by the mayor.
- Writ of quo warranto challenging a city mayor's appointment of a city attorney was properly granted because a council member's abstention on a motion to delegate the power of appointment to the mayor was no vote at all; therefore, there was no tie vote on the motion, and the mayor was not authorized to vote in its favor, leaving authority to appoint an attorney with the council, in accordance with the city charter. Jones v. Boone, 297 Ga. 437, 774 S.E.2d 668 (2015).
Quo warranto permissible where plaintiff contends selection method unconstitutional.
- Where the plaintiff contends the defendants are illegally holding office because of the alleged unconstitutionality of the section of the Georgia Constitution providing for the means of their selection, quo warranto would be an adequate remedy. Boatright v. Brown, 222 Ga. 497, 150 S.E.2d 680 (1966).
Status of defendant at time information is filed controls on the question of whether the defendant is an usurper of the office. Sweat v. Barnhill, 171 Ga. 294, 155 S.E. 18 (1930).
Writ to secure ouster will not lie where office holder is no longer exercising duties of the office, or claiming title thereto. Churchill v. Walker, 68 Ga. 681 (1882); Holmes v. Sikes, 113 Ga. 580, 38 S.E. 978 (1901).
Quo warranto is brought by or on behalf of people for protection of public. White v. Miller, 235 Ga. 192, 219 S.E.2d 123 (1975).
To maintain proceedings to test title to public office, one must have some interest in office; while a claimant to the office has such an interest it is not essential that one be a claimant, but is sufficient if one be a resident or a taxpayer of the municipality where the office in question is that of mayor of such municipality. Walker v. Hamilton, 209 Ga. 735, 76 S.E.2d 12 (1953).
Any citizen and taxpayer may file proceedings under this section to declare public office vacant. Hathcock v. McGouirk, 119 Ga. 973, 47 S.E. 563 (1904); McDuffie v. Perkerson, 178 Ga. 230, 173 S.E. 151 (1933); McCullers v. Williamson, 221 Ga. 358, 144 S.E.2d 911 (1965) (see O.C.G.A. § 9-6-60).
Right to challenge party's right to hold office.
- As a citizen and taxpayer, individual had the right to inquire into the right of the respondent to hold a public office. Huff v. Anderson, 212 Ga. 32, 90 S.E.2d 329 (1955).
Any citizen and taxpayer of a community may challenge the qualifications of a public official to hold office in that community. Highsmith v. Clark, 245 Ga. 158, 264 S.E.2d 1 (1980).
Non-profit association was not a "person" who could seek quo warranto.
- Non-profit association with the purpose of focusing on public interest matters of self-defense and gun laws of the State of Georgia was not a "person" which could claim to have an interest in the offices held by the Georgia Code Revision Commission members for purposes of pursuing a writ of quo warranto under O.C.G.A. § 9-6-60. No association standing was shown because the interests the association sought to protect were not shown to be germane to its purpose. Georgiacarry.org, Inc. v. Allen, 299 Ga. 716, 791 S.E.2d 800 (2016).
Citizen and taxpayer may act in own name without intervention of public officials.
- An information in nature of a writ of quo warranto may be legally instituted by a citizen and taxpayer in the citizen's own name, without the intervention of the state through its public officers. Garrett v. Cowart, 149 Ga. 557, 101 S.E. 186 (1919); Malone v. Minchew, 170 Ga. 687, 153 S.E. 773 (1930).
Proper party plaintiff in quo warranto action may be party claiming office as entitled de jure, and the necessary defendant is the officer de facto who holds and possesses it. Sutton v. Adams, 180 Ga. 48, 178 S.E. 365 (1934).
Claim must be brought against officer in personal capacity.
- City councilmembers' claim to remove the mayor from office was one that must be asserted against the office holder in the officer's individual capacity, and was subject to dismissal because the mayor was not named in the mayor's individual or personal capacity. Lue v. Eady, 297 Ga. 321, 773 S.E.2d 679 (2015).
Nominee in contested election could institute and maintain quo warranto proceeding for the purpose of inquiring into the right of the other nominee to exercise the functions of the office. Thompson v. Stone, 205 Ga. 243, 53 S.E.2d 458 (1949).
Party not estopped in quo warranto proceedings by prior mandamus action against defendant.
- One who institutes as a citizen and taxpayer a quo warranto proceeding, inquiring into the right of the defendant to hold a public office is not estopped from maintaining such action because the person had previously instituted, as an individual, a mandamus action against the defendant in the defendant's official capacity. Huff v. Anderson, 212 Ga. 32, 90 S.E.2d 329 (1955).
Pending quo warranto proceeding instituted by another not a bar.
- A claimant to public office cannot be prevented from instituting quo warranto proceedings against the person holding the office claimed simply because there is pending another quo warranto proceeding, instituted by some other claimant or person interested in the office. Stephens v. Wohlwender, 197 Ga. 793, 30 S.E.2d 469 (1944).
Officer in possession, whether de facto or de jure, could not personally maintain quo warranto action, because the writ is essentially one to inquire into the right of a person to public office the duties of which the officer is in fact discharging. Sutton v. Adams, 180 Ga. 48, 178 S.E. 365 (1934).
Where quo warranto petition showed that if appointee was not entitled to office, third party would be, petitioner had no right to institute proceeding as a quo warranto proceeding cannot be converted into an election contest. Stephens v. Wohlwender, 197 Ga. 795, 30 S.E.2d 470 (1944).
Quo warranto rather than injunction proper remedy to determine title to office.
- Where the title to an office is involved, quo warranto, or a petition in the nature of a quo warranto, is the proper remedy, rather than an equitable petition for injunction. Sweat v. Barnhill, 170 Ga. 545, 153 S.E. 364, later appeal, 171 Ga. 294, 155 S.E. 18 (1930).
While injunction is a proper remedy to restrain public officers from acting illegally, or without authority, yet where the basic and underlying purpose of a suit is really to declare a public office vacant, or to test the title to the office, a proceeding in the nature of quo warranto under this section is adequate to determine the issue. Rogers v. Croft, 203 Ga. 654, 47 S.E.2d 739 (1948); Boatright v. Brown, 222 Ga. 497, 150 S.E.2d 680 (1966) (see O.C.G.A. § 9-6-60).
Equity will not interfere by injunction to determine title to public office, because the remedy of a proceeding in the nature of quo warranto under this section is adequate.(see O.C.G.A. § 9-6-60) Hagood v. Hamrick, 223 Ga. 600, 157 S.E.2d 429 (1967).
Proceedings by injunction may be properly used to protect possession of officers de facto against the interference of claimants whose title is disputed, until the latter shall establish their title by the judicial proceeding provided by law. Sutton v. Adams, 180 Ga. 48, 178 S.E. 365 (1934).
Quo warranto is not exclusive remedy where person sued is not in actual possession and exercising the duties of the office, regardless of whether it might be a permissible remedy in such case. Cummings v. Robinson, 194 Ga. 336, 21 S.E.2d 627 (1942).
Quo warranto is not exclusive remedy where persons rightfully in office desire protection against intrusion and interference from one having no right or authority in the premises, but who will nevertheless so intrude and interfere, unless restrained by judicial action. In such case the writ of quo warranto, though itself a speedy remedy, could not supply that immediate and preventive relief which could be granted through the writ of injunction, and thus would not be as complete or effectual. Cummings v. Robinson, 194 Ga. 336, 21 S.E.2d 627 (1942).
Quo warranto is not proper remedy for official misconduct. McDonough v. Bacon, 143 Ga. 283, 84 S.E. 588 (1915); Turner v. Wilburn, 206 Ga. 149, 56 S.E.2d 285 (1949).
There is no statute in this state specifically prescribing procedure in quo warranto proceeding. Milton v. Mitchell, 139 Ga. 614, 77 S.E. 821 (1913).
Judge may issue rule nisi to show cause why quo warranto should not issue.
- In all cases of applications to file an information in the nature of a quo warranto, the judge to whom it is presented is authorized to issue a rule to show cause why it should not be granted, and upon a return of the rule to hear and consider evidence relevant to the matter involved. Walker v. Hamilton, 209 Ga. 735, 76 S.E.2d 12 (1953).
It is discretionary with court whether application for quo warranto is granted. Walker v. Hamilton, 209 Ga. 735, 76 S.E.2d 12 (1953).
Judgment in quo warranto proceeding against incumbent nullifies any attempted official act after judgment, but such a proceeding does not affect the previous official acts of the incumbent. Center v. Arp, 198 Ga. 574, 32 S.E.2d 308 (1944).
Member of county board of education is public officer within this section. Stanford v. Lynch, 147 Ga. 518, 94 S.E. 1001 (1918); Clarke v. Long, 152 Ga. 619, 111 S.E. 31 (1922) (see O.C.G.A. § 9-6-60).
Offices of mayor and council of incorporated town are public offices within the purview of this section. Rogers v. Croft, 203 Ga. 654, 47 S.E.2d 739 (1948) (see O.C.G.A. § 9-6-60).
Grand jurors not public officers.
- In this state, the grand jury is lacking in the element of tenure and duration which must exist in order to qualify its members as public officers. McDuffie v. Perkerson, 178 Ga. 230, 173 S.E. 151 (1933).
All persons who perform duties in connection with superior court are not necessarily public officers. McDuffie v. Perkerson, 178 Ga. 230, 173 S.E. 151 (1933).
Officer, member, or employee of political party is not public officer. Ritchie v. Barker, 216 Ga. 194, 115 S.E.2d 539 (1960).
Residents, voters, and taxpayers of town have interest in offices of mayor and council such as would entitle them to maintain a quo warranto proceeding to inquire into the right of certain individuals to occupy such offices. Rogers v. Croft, 203 Ga. 654, 47 S.E.2d 739 (1948).
Chairman of State Democratic Executive Committee subject to quo warranto.
- Since state statutes have given the office of Chairman of the State Democratic Executive Committee of Georgia a status in law at least equivalent to that of an office in a corporation, it is subject to the writ of quo warranto to the same extent as such an office, and this is true although the political party itself is not a corporation. Morris v. Peters, 203 Ga. 350, 46 S.E.2d 729 (1948); Ritchie v. Barker, 216 Ga. 194, 115 S.E.2d 539 (1960).
Commission of officer by Governor will not defeat quo warranto. Hathcock v. McGouirk, 119 Ga. 973, 47 S.E. 563 (1904).
Office of clerk of board of county commissioners is subject to quo warranto proceedings by a claimant to that office. Worthy v. Cheatham, 142 Ga. 440, 83 S.E. 113 (1914).
Quo warranto affords adequate remedy for trial of title membership in county board of education. Townsend v. Carter, 174 Ga. 759, 164 S.E. 49 (1932).
Sufficiency of quo warranto petition.
- Quo warranto proceedings are governed under the general rules applicable to all civil actions, and it was error for the trial court to dismiss a petition for failure to state a claim without making relevant queries under the rules. Anderson v. Flake, 267 Ga. 498, 480 S.E.2d 10 (1997).
Quo warranto petition sufficient to show incumbent's ineligibility for office of recorder.
- Where the charter of a city provided that the recorder must have resided for two years in the city, an application for leave to file an information in the nature of a quo warranto and the accompanying petition which contained allegations disputing the respondents two year's residence were sufficient to show the ineligibility of the respondent to hold the office of recorder and to state a cause of action for the issuance of the writ. Blake v. Middlebrooks, 182 Ga. 500, 185 S.E. 786 (1936).
Quo warranto proceeding permissible to claim title to county executive committeeman position.
- In view of the legal status that has been attached to the office of county executive committeeman by statute in this state, a quo warranto proceeding in which the relator claims title to such office, and seeks to recover it from a rival claimant, is not subject to demurrer (now motion to dismiss) as asserting a purely political right. Ritchie v. Barker, 216 Ga. 194, 115 S.E.2d 539 (1960).
College professor not subject to quo warranto.
- Professor and departmental chairman of the criminal justice department of a state college, as well as the director of the Criminal Justice Institute at that college, did not hold a "public office" within the meaning of O.C.G.A. § 9-6-60. MacDougald v. Phillips, 262 Ga. 778, 425 S.E.2d 652 (1993).
Issuance of quo warranto improper.
- Trial court erred in granting a citizen a writ of quo warranto revoking county board of equalization (BOE) members' appointments because although BOE members were public officers subject to quo warranto, the citizen's petition for a writ of quo warranto was subject to dismissal when the citizen did not seek leave of court prior to filing the complaint; although the trial court purported to award, in the alternative, a permanent injunction prohibiting the members from serving on the BOE until they were statutorily qualified, such relief was improper as an alternative to the writ of quo warranto. Everetteze v. Clark, 286 Ga. 11, 685 S.E.2d 72 (2009).
Leave of court must be granted to seek writ of quo warranto.
- Former city attorney followed correct procedure to obtain a writ of quo warranto by filing an application for leave of court to file an information in the nature of a quo warranto, and the trial court issued a rule nisi granting leave to file the petition; the order granting leave was not improper because the order was signed by the clerk of court, because under O.C.G.A. § 15-6-61(a)(3), the clerk was authorized to sign orders at the direction of a superior court judge. Jones v. Boone, 297 Ga. 437, 774 S.E.2d 668 (2015).
Judge's petition for a writ of quo warranto challenging the qualifications of members of the Judicial Qualifications Commission was due to be dismissed because the judge failed to obtain leave of court to file the petition for quo warranto as required by the plain language of the quo warranto statute, O.C.G.A. § 9-6-60. Crawford v. Balli, 355 Ga. App. 297, 844 S.E.2d 236 (2020).
Cited in Dean v. Healy, 66 Ga. 503 (1881); Dorsey v. Ansley, 72 Ga. 460 (1884); Hornady v. Goodman, 167 Ga. 555, 146 S.E. 173 (1928); Overton v. Gandy, 170 Ga. 562, 153 S.E. 520 (1930); Wood v. Arnall, 189 Ga. 362, 6 S.E.2d 722 (1939); Souther v. Butler, 195 Ga. 566, 24 S.E.2d 668 (1943); Huff v. Anderson, 212 Ga. 32, 90 S.E.2d 329 (1955); Marsh v. Clarke County Sch. Dist., 292 Ga. 28, 732 S.E.2d 443 (2012).
RESEARCH REFERENCES
Am. Jur. 2d.
- 65 Am. Jur. 2d, Quo Warranto, § 16 et seq.
21 Am. Jur. Pleading and Practice Forms, Quo Warranto, § 2.
C.J.S.- 74 C.J.S., Quo Warranto, § 14 et seq.
ALR.
- Teacher as an officer whose right may be tested by quo warranto, 30 A.L.R. 1423.
Quo warranto to test results of primary election, 86 A.L.R. 246.
Quo warranto to test right to serve as grand or petit juror, 91 A.L.R. 1009.
Quo warranto as remedy in field of taxation, 109 A.L.R. 342.
Power of district, county, or prosecuting attorney to bring action of quo warranto, 131 A.L.R. 1207; 153 A.L.R. 899.
Injunction as remedy against removal of public office, 34 A.L.R.2d 554.
Right of private person not claiming office to maintain quo warranto proceedings to test title to or existence of public office, 51 A.L.R.2d 1306.
