The Marietta journal. [volume] (Marietta, Ga.) 1866-1909, 1899-10-26
] b EhRAsTo PROCEEDINGS.

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F6 RRkSTo PROCEEDINGS.
Last week, through his attorneys,
Messrs.D. w. Blair and J. f. Motley,
Mr n NJ, Brandy brought quo war
ranto proceedings before Judge Goper
sgainsts eNl Foster to remove
him as City ssisstrar Mr. Brhmby
elaims in his petitjBh chat he issa citi-
zen and taxpayer Of Marietta, and also
. Candidate for, Mayor at the next city
election, and that he is interested in
having sfair and legal registration OF
the legal voters Of said city.
The proceeding is brought under
seftjGA 7S9 Of the Code, which pro-
|Eidg souncilmsn in cities of
be incompetent to hold,
Is of less than 1900 in
fsss 5ther municipal office in
said Towns cities during the term
IF office I'm Which they were chosen"
Mr.. Fo$fer being member OF the
council, tits claimed that his election
as City Registrar is illegal, and that he
should be removed and his place filled
by some competent or eligible person.
The petition further claims that he
could not, as councilman, legally vote
to fix his salary as City Registrar, as
Section 751 OF the Code, ssays: cit is
improper and illegal for member of
city council to vote upon any question
brought before the council in which he
is personally interested"
Judge Gober heard the proceedings
Monday morning last. Col. Foster and
Col. N. A. Morris represented the de-
Tense. Col. Foster contended that the
office was unsought by him, and that
in filling the position as City Registrar,
whether eligible or not, did not destroy
the legality of the registration, and
that as the registration was requisite
to hold the next city election, the
judge in his discretion had the right
not to suspend any functionaIy in the
discharge of his duties if it interferred
with the carrying out of the law for
the good of the public, and that there
would be an interference and delay if
he was removed and another registrar
elected
Judge Gober deferred his decision
until Tuesday.
In a lengthy review Judge Gober
shows that the Supreme Court lodges
discretionary powers with the Judge in
matters of this kind, and sums up his
decision in the concluding paragraph.
as follows:
at is not alleged that he is unfair,
that he is incompetent, or that his
work will not be properly done; it is
not alleged that he is a partisan; eer-
tainly a man who it is alleged is a
member of the City Council, who has
been elected by five county officers of a
county of the population and standing
of Cobb would have the presumption in
his favor of being fit man to discharge
the duties of this important office in
the absence of any charge to the con-
trary.
One thing is sure, whatever he does
is done rs defacto officer, and as has
been admitted in the argument before
me by the petitioner, before entering
upon his duties as registrar he had
taken the oath prescribed in the act
Again, this is an important matter
just now. The people of this city have |
determined to have a registration. AS
matter of public history | know that |
it has been agreed on all sides that the |
officers for the ensuing term should be |
selected by Il primary of the white
voters of the city.
We have only to recur to the scenes /
that have been enacted here to show |
what great stride this is compared |
with the manner in which this has been |
done heretofore III have discretion |
do not think that / should use it so |
as to jeopardize this good work.
Il do not think that the respondent |
was in the actual discharge of the du-
ties of this office when this application
was made. Every thing that he has to |
do in his term of office, as have shown, |
will be completed by the 18th of No |
vember, at the outside, and to grant |
this writ would be useless and nugatory. |
His work would be completed before |
it could be determined 1t would be |
useless and Improbable l refuse the
application.
We are informed that the probabili-
ty is an appeal will be made to the |
Supreme Court.