182 Ga. 384 | Ga. | 1936
Lead Opinion
It is practically conceded that if Daniel is a de jure officer — that is, if the Governor had authority to suspend Hamilton as Treasurer and appoint Daniel in his stead pending the suspension, the bank would be fully protected in the payment of the funds on deposit to Daniel as State Treasurer. But it is insisted that Daniel is not a de jure officer; that the Governor had no authority to suspend Hamilton and appoint Daniel, it being contended that section 40-1301 of the Code should be construed as a limitation on the power of the Governor to suspend as stated in section 40-206; that the two sections should be construed in pari materia and to mean that the Governor could suspend only after trial before the council; that if the Governor did have such authority, his order of suspension was tantamount to a removal, which was invalid because ordered without notice or trial to Hamilton, and because the order makes no findings of fact sufficient to show that any of the causes specified by the statute existed.
An examination of the constitution and provisions of the Code in reference to the suspension of the State Treasurer, as well as of the authorities construing the same, demonstrates that these objections to the authority of the Governor to suspend the State Treasurer and the validity of his appointment to fill the vacancy during the suspension are not tenable. The constitution of 1868 was silent as to the authority of the Governor to suspend the Treasurer, and the Governor was without statutory authority to suspend him. By an act of February 25, 1876 (Ga. L. 1876, p. 127), the legislature authorized the Governor to call a council, to be
It was also provided in the act of 1876 that there should be a State Treasurer elected by a joint vote of both houses of the General Assembly, and that he should hold his office for four years. While the act of 1876 was in force as to the election and suspension of the State Treasurer, the constitution of 1877 was ratified. This constitution provided for election by the people of the State Treasurer; and further provided, in article 5, section 1, paragraph 18 (§ 2-2618), as follows: “The General Assembly shall have authority to provide by law for the suspension of either of said officers [State Treasurer or Comptroller-General] from the discharge of the duties of his office, 'and also for the appointment of a suitable person .to discharge the duties of the same.” By an act of September 30, 1879 (Ga. L. 1878-9, p. 30), the General Assembly, without repealing the act of 1876 in reference to suspension of the State Treasurer, put into effect this provision of the constitu
Sections 40-206, 40-1301, and 47-701 are within the constitutional provisions for the suspension of the State Treasurer, and provide a separate and distinct remedy for his suspension. The provision of the act of 1876 contained in section 40-1301 was not repealed by the constitution of 1877, or by the act of 1879, con-
A suspension from office does not destroy but merely suspends the acquired right to the office. 46 C. J. 983, § 144. A suspension from office and a removal from office convey very different ideas.
It is not our office to inquire into the wisdom of the legislature in clothing the Governor with the responsibility, under certain circumstances, to suspend the State Treasurer. There is ample argument to show that the power should be lodged somewhere. Here it is in the Governor. The only limitation on his discretion is that he must act on trustworthy information and report his action to the General Assembly. This is not the first case where a Governor of the State suspended an officer elected by the people. A former Governor, Hoke Smith, suspended a member of the Railroad Commission. In dealing with the case growing out of such suspension this court held, in Gray v. McLendon, supra, that the suspension might be had, and was legal without notice or hearing. Under section 40-206, the Governor decides whether or not the cause for suspension exists. It is no answer to say that the power is subject to abuse. All discretionary power is subject to abuse; but in the very nature of things, in order to secure, insure, and preserve the functions of government, it must in many cases be lodged in some officer of the State. The legislature has chosen, in this instance, to confer this power upon the Governor, with the requirement that he report his action to the legislature. The exercise of this power under the sanction of his official duty and obligation to the State is not subject to review or control by the courts. The remedy for inquiry and review to correct any error that may
A de jure officer is one who occupies by right a de jure office. A de jure office is one lawfully created. A person eligible to fill a de jure office, when duly appointed or elected to such office, upon his qualification and commission by the proper authority becomes a de jure officer. “And if a public office is vacant because of incumbent’s suspension, it becomes, as to the suspended person, for the time being as though it did not exist, and as to the public the person appointed to fill the vacancy is the sole incumbent of the office.” 46 C. J. 983, § 144; Gray v. Independence County, 166 Ark. 502 (226 S. W. 465), and cit. Where there is an office and there arises therein a suspension by vacancy, and another is appointed by the appointing power to fill such vacancy, and the appointee qualifies and is duly commissioned, such appointee becomes, until the suspension is removed, a de jure officer as to such office. The public may lawfully deal with him as such officer, and therein is fully protected. The conclusion inevitably follows that the lawful authority vested in the Governor the power to suspend the State Treasurer and to appoint another to perform the duties of the office during the suspension. The Governor having suspended Hamilton as Treasurer in accordance with the provisions of the statute, and having appointed and commissioned Daniel as State Treasurer to fill the vacancy caused by the suspension, Daniel, having qualified and assumed the duties of the office as such, became and is, during the suspension, the de jure State Treasurer. All persons having business with the' State Treasurer are lawfully authorized to deal with him as such, and in such relation they are fully protected by the law. It is not necessary for us to consider whether Daniel would be a good de facto officer, for the reason that under the admitted facts of the case he is a de jure officer occupying a de jure office, that of State Treasurer.
The petition does not present a case for interpleader. The rule of the Code authorizing an interpleader is as follows: “37-
Judgment reversed.
Dissenting Opinion
dissenting. In the opinion rendered by the majority of the court two conclusions have been reached, the first being that the Governor was legally justified in suspending the State Treasurer, while the second holds that the facts of the case do not authorize the granting of a bill of interpleader. The opinion further states that with these two issues adjudicated a consideration of the other questions involved in the record is not necessary. I am not in accord with either of the conclusions reached by the majority opinion, and I can not concur in its findings. The ease of plaintiff in error is necessarily based upon two legal propositions. The first of these is that the Governor under the provisions of the
The statute, after conferring upon the Governor the right to suspend the Treasurer for the causes specified, provides that ihe Governor shall report his reasons for such suspension to- the Generad Assembly, and that such suspension shall continue until ihe General Assembly otherwise directs. Nothing else contained in the statute can possibly be construed as conferring the power to review in the legislature. There is nothing in this language which, expressly or by necessary implication, either authorizes or requires the General Assembly to take cognizance of the proceeding and to review the Governor’s action. Properly construed, this language merely confers upon the General Assembly a plenary power to reinstate after a suspension is made by the Governor. This question was discussed with some elaboration in the case of Gray v. McLendon, 134 Ga. 224 (supra), in which this court had under review a case where the Governor had suspended a member of the Kailroad Commission, the suspension being under the provisions of a statute approved by the General Assembly on October 14, 1879. This statute, after conferring upon the Governor the power to suspend members of the Commission, provides that the Governor shall report ihe fact of such suspension, and ihe reasons therefor, to the
It will be observed that the language of the statute then under consideration and that now discussed were to the same general effect, except in one case the General Assembly reserved the right to remove from office after suspension by the Governor, while in the other it reserved the power to reinstate after such suspension. In discussing that case this court held that the provision that the Governor should report the reasons of his suspension to the General Assembly was merely a directory one, the only purpose of which was to furnish information to the General Assembly and the general public. It further held that the Governor was not as a matter of fact required to make the report. If he did so, the General Assembly in any action taken by it might take into consideration the reasons assigned by the Governor, or might base its action upon entirely different reasons. In other words, that the right to remove is a plenary power that may be exercised by the legislature entirely independent of and without reference to reasons motivating the Governor’s action. And while the court did not in exact language hold that the General Assembly might in its discretion ignore the entire proceeding, the whole logic and reasoning of the decision makes this conclusion inescapable. Applying, therefore, the reasoning of that decision to the facts of this case, it appears that the General Assembly has not reserved unto itself any exclusive power of review of the Governor’s action in suspending the Treasurer. This is necessarily true, as a power to review naturally presupposes, not only a requirement to take cognizance of the proceeding to be reviewed, but a like requirement to inquire into the merits of the controversy and to render a judgment in accordance therewith. It therefore follows, since the General Assembly is not required to take any cognizance of the proceedings, that the exclusive power to review the same is not lodged with that tribunal; and since it is not confined to the reasons motivating the Governor, its judgment could not be a review of his action. Tiren, too, it must be remembered that the Governor is not required to make any report of his reasons, the provision of the statute to this effect being directory and not mandatory. Such being the case, the legislature would not have available anything in the way of a
It is admitted that the Governor suspended the Treasurer without notice and without a hearing. Even if the Treasurer was in possession of the facts upon which the suspension was based, it is evident that he was not afforded an opportunity to defend against them. Under such circumstances, .even if the Governor makes a report of his reasons for such suspension to the General Assembly for the purpose of review, any review made will necessarily be a review of an ex parte proceeding at which only one side of the controversjr was heard. That would not be true if the Treasurer were permitted to appear before the General Assembly and make a defense, but no provision is made for such appearance by the terms of the statute. Even if there were, the legislature is not confined in its action to the reasons specified in the order of suspension, but in its discretion can ignore the same and act upon reasons independent thereof. Therefore the contention that the power to review is vested exclusively in the General Assembly is wholly erroneous. In this connection it is advisable to examine the authorities relating to the suspension and removal of public officials from office, which have been rendered by the courts of last resort in this State and other jurisdictions. Such authorities are numerous, and apparently deal with every phase of the subject. They deal with the different classes of suspensions and removals and the various grounds upon which they are based. For instance there are decisions dealing with suspensions which are only temporary and others dealing with suspensions that run for an indefinite period. They deal with those classes of the subject where the power to suspend or remove is arbitrary and without limitation, and those that can only be exercised for cause. It is not necessary to cite the same here. While informative upon the general subject under consideration, none appear to be so exactly in point as to be controlling upon the questions involved here. Then, too, an overabundance of authority not directly applicable to the facts of a case often tends to confuse
It is argued that a distinction exists between removals from office and suspensions from, office, and that this principle is not applicable to suspensions. The distinction referred to does exist, but it is not such a distinction as prevents the rule being applicable in the case of suspensions running for an indefinite period. As a matter of fact the principle has been definitely held applicable in suspensions of the character indicated. McDowell v. Burnett, 92 S. C. 469 (75 S. E. 873), Sullivan v. King, 98 S. C. 314 (82 S. E. 408). It is only in suspensions of a temporary nature, pending the trial of the officer sought to be deprived of office, that the rule is not applicable. Naturally in such cases this principle is not of force. But where the suspension is for an indefinite period of time, the
Eeverting to the first proposition herein stated, I can not accept the construction placed upon the statute by the plaintiff in error; for I can not agree that the Governor is the sole judge of the term, “trustworthy .information.” So to construe the term would be to give the statute a meaning that I can not think the legislators who enacted it meant for it to have. It would enable the Governor to act upon any unfounded rumor or suspicion which he, in his discretion, might term trustworthy information. It would enable him to suspend the Treasurer and Comptroller-General of the State at any time, arbitrarily and without limitation, notwithstanding the fact that this authority is specifically limited to cause. A study of the statute convinces me that it was not intended that this power be conferred upon him. Instead of being a term to be loosely construed in the discretion of the Governor, as contended, I think the term “trustworthy information” is a tangible one that has a meaning. It could properly and reasonably be construed'as the equivalent of satisfactory proof; for trustworthy information is satisfactory proof, and satisfactory proof is trustworthy information. The same words used in different connections often have different meanings. Therefore these words should not be construed alone, but with and in the light of the remaining language of the statute, and with this done the whole statute so construed as to give the same a reasonable meaning; that is to
If, then, it is contended that the statute as a whole is in some respects ambiguous and capable of different constructions, it is the duty of the court to construe it in an effort to ascertain the intention of the legislators who enacted it. This must be done, where possible, from the language of the statute; but in seeking this end the court is not entirely restricted to the language itself. Judicial cognizance can properly be taken of historical matters that are informative as to the trend of the legislative mind at the time the legislation was enacted. In this connection, it will be remembered that our present constitution was adopted in the year 1877, or twelve years after the end of the War between the States. The framers of the constitution lived in Georgia during that tragic era when the public affairs of the State were in control of a regime commonly known as the “carpet-baggers.” They were naturally informed as to the various indignities suffered by the people under the administration of this regime, and of the deep resentment these outrages incurred among our citizens. It is probable that no other one thing so incensed the people as the disgraceful and unlawful manner in which the public funds of the State were squandered and expended. It is natural to assume, therefore, that the representatives of the Constitutional Convention entered upon their duties strongly impressed with the imperative necessity of safeguarding the public treasury from unlawful and unwarranted expenditures. That they were so impressed is demonstrated by the result of their labors. They wrote into the organic law of this State'a provision that no warrant can be paid out of the public treasury unless the same is signed by the Governor. But they did not stop there. They further provided that even though the warrant was signed by the Governor it should not be paid unless it was also countersigned by the Comptroller-General. But this was not
The banking institution involved here, under the facts of the case, occupies the status of a stakeholder. Parties occupying this position are not required to make decisions at their hazard and peril, but are permitted to ask direction of the courts. This is consistent with the principles of justice, equity, and common sense. Otherwise the law would impose upon its citizens hardships and burdens which are both unnecessary and unjustified. A bill of inter-pleader is an equitable remedy, and the facts of this case present a situation where the beneficent offices of equity can be invoked. In equity all' pending actions can be consolidated and disposed of in one proceeding, and in equity the rights of all parties can be more readily ascertained and more economically adjusted. These rights,
Concurrence Opinion
concurring specially. I am of the opinion that the petition for interpleader in this case should .have been dismissed, because a court of equity is without jurisdiction to decide the right of either the plaintiff in error or Hamilton to the office of Treasurer of the'State; but since the majority have seen fit to go directly into the question as to whether or not Daniel is the de jure Treasurer, I concur in their holding as to that question.
