297 Ga. 437
FINAL COPY


                       S15A0521. JONES v. BOONE.


      HUNSTEIN, Justice.

      This is an appeal from a trial court’s order granting a writ of quo warranto

based on that court’s conclusion that appellant Ronny Jones was not appointed

as attorney for the City of Gordon, Georgia (the “City”), in accordance with the

City’s charter. The quo warranto action was initiated by appellee Joseph Boone,

who prior to May 21, 2014, had held the position of city attorney in Gordon for

35 years. For the reasons that follow, we affirm the order granting the writ of

quo warranto.

      The relevant facts in this case are undisputed. Under the City’s charter,

legislative authority is vested in a city council, which is comprised of a mayor

and six council members. Charter of City of Gordon, § 2.10 (a). Except as

otherwise provided in the charter, the affirmative vote of at least four council

members is required for the adoption of any motion or resolution. Id. at § 3.15

(a). The mayor, who as a general rule presides over city council meetings, is

authorized to vote on matters brought before the city council only in those cases
where there is a tie vote, “except that [she] may vote in all elections for officers

who are elected by the city council and impeachment or removal proceedings

whether there is a tie or not.” Id. at § 3.22 (8). With regard to the appointment

of a city attorney, the charter expressly provides that the “city council shall

appoint a city attorney” who “shall serve at the pleasure of the city council.” Id.

at § 4.12.

      At a May 21, 2014 Gordon City Council meeting presided over by Mayor

Mary Ann Whipple Lue, a motion was made to terminate Boone’s services for

the City as city attorney. The vote on the motion by the council members in

attendance was three to two in favor, with one abstention. In the absence of the

requisite four votes by council members, the mayor voted in favor of the motion,

resulting in a vote of four to two. After some discussion about the immediacy

of pending legal matters, Boone’s continuing legal and ethical obligations to the

City, and the necessity of transferring Boone’s files, a motion was made to

authorize Mayor Lue to appoint an interim city attorney. The vote on this

motion was again three to two in favor, with one abstention; the mayor again

concluded that she was authorized to vote and cast her vote in favor of the

motion. The following day, Mayor Lue announced that she had appointed Jones

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as the new city attorney.1

      Boone subsequently sought leave to file a petition for writ of quo warranto

challenging the validity of Jones’ appointment. Boone specifically contended

Jones’ appointment by Mayor Lue was an ultra vires act because the mayor was

not authorized to vote on the May 21, 2014 motions pertaining to the office of

city attorney in the absence of a tie vote by city council members. See Charter

of the City of Gordon, § 3.22 (8). The trial court agreed, concluding that (1) the

“city attorney serves at the pleasure of the council pursuant to section 4.12 of the

City Charter”; (2) “the power exercised by the mayor to appoint [Jones] as city

attorney was not within the mayor’s powers”; and (3) Jones “is not the duly

appointed attorney for the City of Gordon, Georgia.” Because it determined

Mayor Lue did not possess the power to appoint Jones as city attorney, the trial


      1
         The minutes of the Gordon City Council’s May 21, 2014 meeting reflect that
an initial motion was made “to terminate any and all contracts with the city attorney,
Joseph Boone,” and like the votes on the other related motions, the city council voted
three to two to terminate Boone’s contracts, causing Mayor Lue to cast her
affirmative vote. Boone then pointed out that he had no contract with the City, that
he served at the pleasure of the city council, and that a vote of at least four council
members would be required for his removal. Later in the meeting, an additional
motion was made “repeating” the council’s earlier motion to “terminate Attorney
Boone’s services with the city.” The vote on this motion by council members was
three to two in the affirmative with the mayor ultimately providing a fourth
affirmative vote.
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court granted Boone’s petition for quo warranto.

      1. Jones challenges the procedural posture of Boone’s petition for writ of

quo warranto, arguing both that Boone did not have standing to seek the writ

and that the trial court did not grant Boone the necessary leave to file his

petition. We find no merit in these contentions.

      Under OCGA § 9-6-60,

      [t]he 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.

See Milton v. Mitchell, 139 Ga. 614, 617 (77 SE 821) (1913). See also White

v. Miller, 235 Ga. 192, 192-193 (219 SE2d 123) (1975) (interested citizen and

taxpayer may institute quo warranto proceedings to inquire into right of person

to hold public office the duties of which he is discharging); Walker v. Hamilton,

209 Ga. 735, 736-737 (76 SE2d 12) (1953) (“[T]o maintain such proceedings

to test the title to public office, one must have some interest in the office. While

a claimant to the office has such an interest, it is not essential that one be a

claimant, but is sufficient if he be a resident or a taxpayer of the municipality

where the office in question is that of mayor of such municipality.”). Boone had


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standing to seek the writ because he claimed the office of city attorney based on

the absence of an affirmative vote by four council members to terminate his

services as city attorney.2 See Milton, supra, 139 Ga. at 617.

      Not only did Boone have standing to seek a writ of quo warranto, but in

filing his petition he followed a procedure specifically approved by this Court.

Both parties concede that a petition for quo warranto may be filed only by leave

of court. See OCGA § 9-6-60; Richardson v. Phillips, 285 Ga. 385, 385 (677

SE2d 117) (2009). The record demonstrates that Boone filed an “Application

for Leave of Court to File an Information in the Nature of a Quo Warranto” in

the trial court, which, in turn, issued a rule nisi signed by its clerk of superior

court granting Boone leave to file a petition for quo warranto and ordering a

show cause hearing for a date certain. Compare Milton, 139 Ga. at 618-619

(“when the proceedings are instituted for the usurpation of an office claimed by

the relator as a matter of right, it has been held to be immaterial whether he

proceeds in the first instance by the rule nisi or asks leave to file the

information”); Walker, 209 Ga. at 738 (“[I]n all cases of applications to file an

      2
        The propriety of the vote on the motion to terminate Boone’s services is not
an issue in this quo warranto action, see OCGA § 9-6-60, and therefore, we do not
address that issue in this opinion.
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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.”). The order granting leave was not improper because it was signed

by the clerk of court, see OCGA § 15-6-61 (a) (3) (authorizing clerk of superior

court to sign orders at the direction of a superior court judge), and Jones’

contrary arguments aside, we find no authority mandating that the same judge

who grants leave to file a petition for quo warranto must preside over the

hearing to determine whether the petition should be granted.

      2. Jones contends the trial court erred by holding that the mayor was

without authority to appoint Jones as city attorney. His argument, made in

multiple parts, is that although the City’s charter specifically provides that the

city council shall appoint a city attorney, the council voted at its May 21, 2014

meeting to delegate this power of appointment to the mayor. The vote on the

motion to delegate was three to two in the affirmative, just short of the four

votes required for adoption. One council member abstained from voting,

however, leaving it, Jones argues, within the discretion of the mayor to count the

abstention vote as a negative vote, thereby creating a tie and authorizing the

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mayor to cast her vote to give herself the power to appoint a city attorney. See

Charter of the City of Gordon, § 3.22 (8). This argument raises several

concerns, including whether under the City’s charter the council could delegate

to the mayor a power specifically conferred upon it by the charter, and whether

in doing so, the mayor was authorized to cast the deciding vote to transfer such

power to herself. We need not consider these issues, however, because we find

no authority permitting the mayor to count the council member’s abstention

from voting as a negative vote, thereby creating a tie.

      As stated, the City’s charter provides that “[e]xcept as otherwise provided

in this charter, the affirmative vote of four (4) council members shall be required

for the adoption of any ordinance, resolution, or motion.” Charter of the City

of Gordon, § 3.15 (a). We previously have considered, in a case involving very

similar language, the issue of how a commission or council, whose charter

unambiguously requires an affirmative vote of a specified majority of its

members, can treat an abstention from voting. See Merry v. Williams, 281 Ga.

571 (4) (642 SE2d 46) (2007). We recognized in Merry that the requirement of

a specific number of affirmative votes exhibits a legislative intent that

abstentions not be counted with the majority of votes cast and concluded that the

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inclusion of such a requirement within the act consolidating the governments of

the City of Augusta and Richmond County prohibited the commission from

counting an abstention as an affirmative vote. See id. at 576-577. We further

determined, under the rules of procedure applicable to the commission in that

case, that abstentions could not be counted as negative votes. Id. at 576.

      Here, Jones argues that Mayor Lue had the authority to treat an abstention

as a negative vote. He, however, cites no act, law, charter provision, or rule of

procedure granting either the mayor or the city council such authority. A mayor,

like the municipality which he or she serves, has no inherent power but can only

exercise that power delegated by the legislature. See generally H.G. Brown

Family, L.P. v. City of Villa Rica, 278 Ga. 819 (1) (607 SE2d 883) (2005) (“A

municipality has no inherent power; it may only exercise power to the extent it

has been delegated authority by the state.”); see also OCGA § 36-35-3 (a)

(delegation of legislative power is to the municipality’s governing authority, that

is, the mayor and council). Moreover, the City’s charter, which sets forth the

sole power conferred by the City upon the mayor with regard to her right to vote

on council matters, is silent as to how to treat an abstention, and unlike in

Merry, there has been no evidence presented or suggestion made that the

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council has adopted any rules of procedure which might govern the handling of

an abstention in this circumstance. To the extent that Robert’s Rules of Order

may do so, we acknowledged in Merry that according to Robert’s Rules,

“‘(a)lthough it is the duty of every member who has an opinion on a question to

express it by his vote, he can abstain, since he cannot be compelled to vote.’

Robert’s Rules of Order Newly Revised (10th ed.), p. 394, 1. 6-9. ‘The clear

implication from that provision is that an abstention is not to be counted as a

vote.’ [Cit.]” Merry, 281 Ga. at 576. See also Robert’s Rules, Ch. III, § 44 (“to

‘abstain’ means not to vote at all”).

      Accordingly, in the absence of any clear statutory, charter provision, or

rule of procedure authorizing the mayor to treat an abstention as an actual vote

by a council member, either in the affirmative or negative, we hold that the

council member’s abstention from voting on the May 21, 2014 motion to

delegate to the mayor the power to appoint a city attorney was, in fact, no vote

at all. Therefore, there was no tie vote on the motion, and Mayor Lue was not

authorized to cast a vote in its favor. The sole authority to appoint a city

attorney thus remained in the city council, see Charter of the City of Gordon, §



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4.12,3 and Jones’ appointment as city attorney by the mayor was invalid.4

      3. Finally, we find no error in the trial court’s failure to hold a jury trial.

Although a jury trial is required in a quo warranto proceeding where there are

factual questions at issue, see OCGA § 9-6-65, a jury trial is not required where

the only issues concern questions of law. See City of College Park v. Wyatt,

282 Ga. 479 (2) (651 SE2d 686) (2007); Hornsby v. Campbell, 267 Ga. 511 (4)

(480 SE2d 189) (1997); see also OCGA § 9-6-64 (a) (where application for writ

of quo warranto involves only questions of law, case may be determined by

judge of the superior court). In this case, Boone’s application alleged that

Mayor Lue was without authority under the City’s charter to appoint Jones as

city attorney and, as evidenced by the hearing transcript, the facts related to

Jones’ appointment were not in dispute. Accordingly, the only issues before the

trial court involved the interpretation of the charter’s voting requirements and

procedures which were questions of law. See Merry, 281 Ga. at 573.

      Judgment affirmed. All the Justices concur.




      3
          Lue v. Eady, 297 Ga. ___ (___ SE2d ___) (2015)

      No evidence has been presented suggesting that the council at any time has
      4


moved or voted on a motion to appoint Jones as city attorney.
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                    Decided June 29, 2015.

Quo warranto. Jasper Superior Court. Before Judge Brown.

Ronny E. Jones, pro se.

Boone, Scott & Boone, James S. Green, for appellee.




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