ONeal et al. v. Spencer

Supreme Court of Georgia1948-04-16No. No. 16165

203 Ga. 588

Summary · law.co

Holding. The court affirmed the trial court's judgment, holding that Spencer's appointment was valid even though made three days before the statutorily designated period, because the time requirement in the statute was directory rather than mandatory, and the plaintiffs failed to allege any injury resulting from the early appointment.

Citizens and taxpayers of Savannah brought a quo warranto proceeding challenging Frank W. Spencer's appointment to the Board of Public Education. They argued that the appointment was invalid because it was made on November 28, 1947, rather than during the designated thirty-day period preceding December 31, 1947, as required by a 1933 Georgia statute governing the appointment process. The trial court dismissed the petition by sustaining a general demurrer, finding it failed to state a valid cause of action.

The appellate court affirmed the dismissal, applying the principle that when a statute prescribes a time for performing an act without using restrictive language, the time requirement is typically directory rather than mandatory. Because the statute contained no language rendering the appointment void if made outside the specified window, and because the plaintiffs alleged no actual injury from the early appointment, the court held that Spencer's appointment remained valid despite the timing deviation.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether timing requirements in statutes governing public officer appointments are mandatory or directory
Whether substantial compliance satisfies statutory procedures for government appointments
Whether an appointment can be voided absent a showing of injury to the challenger

Procedural posture

The plaintiffs appealed from a judgment sustaining the defendant's general demurrer to their quo warranto petition.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Candler, Justice.

Marvin O’Neal and others, as citizens and taxpayers of the City of Savannah, filld a proceeding in the nature of a quo warranto to inquire into the right of Prank W. Spencer to hold office as a member of the Board of Public Education for the City of Savannah and Qhatham County. Briefly, the petition alleged: The appointment of Captain Spencer was null and void, because section 2 of the act of 1933 (Ga. L. 1933, p: 1067), under which he was appointed by the Mayor and Council of the City of Savannah provides: “That during the last thirty-day period preceding the expiration annually of the terms of office of two members of said board, the successors to said two members shall be chosen as follows: The Mayor of the City of Savannah shall submit a nomination or nominations to the City Council of Savannah, and said City Council shall elect from the nomination or nominations thus submitted, one member of said Board of Public Education for a term of six years.” The period during which he could have been legally appointed was the thirty days immediately preceding December 31, 1947, but the appointment was made November 28, 1947. The exception here is to a judgment sustaining a general demurrer, which assailed the petition for failing to state a cause of action for the relief prayed. Held:

1. “A substantial compliance with any requirement of the Code, or laws amendatory thereof, especially on the part of public officers, shall be deemed and held sufficient, and no= proceeding shall be declared void for want of such compliance, unless expressly so provided by the enactment.” Code, § 102-102 (6).

2. The judge did not err in sustaining the general demurrer when he applied to the allegations of the petition in the instant case the principle of law announced in Horkan v. Beasley, 11 Ga. App. 273 (76 S. E. 341), Spencer v. Columbus, 150 Ga. 312, 314 (103 S. E. 464); Perkins v. Norristown School District, 151 Ga. 414 (107 S. E. 42), Willcox v. Beechwood Band Mill Co., 166 Ga. 367 (143 S. E. 405), and City of Rome v. Rigdon, 192 Ga. 742, 746 (16 S. E. 2d, 902). The rule as announced in Horkan v. Beasley, supra, and followed by this court in the cases cited above, is that, “Where a statute directs the doing of a thing in a certain time, without any negative words restraining the doing of it afterwards, generally the provision as to time is directory, and not a limitation of authority; and in such case, where no injury appears to have resulted, the fact that the act was performed after the time limited will not render it invalid.” There is no provision in the act which would render the respondent’s appointment void unless made within the time fixed by the terms thereof. His appointment, being otherwise valid, is not void because the mayor and council made the appointment three days before they were authorized to do so under the directory terms of the act, and. that is especially true in the absence of any allegation in the petition that the petitioners have been injured in any way by the action complained of. Judgment affirmed.

All the Justices concur.

Lawrence J. Dwyer, Robert E. Falligant, and Marvin O’Neal Jr., for plaintiffs.

Fred B. Davis and John C. Wylly, for defendant.