63 Ga. 588 | Ga. | 1879
A writ of quo warranto, in the name of the governor,, on the information of Thomas D. Swann, against John F. Hardin, was heard and determined by Judge Speer, without a jury, the parties consenting to dispense with a jury. The controversy was respecting the office of justice of the peace in and for the 561st district, Gr. M., Rockdale county, and involved both the legality and' the true result of an election held on the 4th of January, 1879, to fill a vacancy caused by the resignation of the late incumbent, D. O. White. The petition for the writ of quo warranto was filed on the 7th of February, 1879, and prayed that Hardin show cause why he held the governor’s commission, and why the same should not be declared void, and be surrendered and canceled, and that a commission be ordered and issued to Swann, the relator, or that the election be declared null and void, and that such other and farther order be had in the premises'as might be proper.
The facts alleged in the petition were substantially the following : The election was held after only ten days’ notice had been given by the ordinary; the’ notice was posted in
The respondent answered, and at the trial his counsel moved to dismiss the writ, because the relator, “ by his own pleadings, shows he is not entitled to said office, because said election was not held in conformity to the law by three freeholders of said district, after' advertising the same for fifteen days or more.” The court denied the motion, and this is assigned as error. Evidenep having been introduced (which, however, is not authenticated so as to be considered on this writ of error),'counsel’ for Hardin, in their argument on the merits of the case, urged the court to dismiss the proceeding “ because the questions at issue were determined in a contest for the office before the governor, or were such questions as could and should have been determined in said contest.” Instead of so ruling, the court finally adjudged that the election was null and void because
What we undertake to rule now in an authoritative way is only this: that even if it be the purpose of the Code to set up an exclusive remedy by contest before the governor, and if such a provision be constitutional, the remedy is applicable only where full opportunity has been afforded to have the contest heard and determined: and that where, without fault on the part of the contestant, a commission has issued inadvertently, pending the contest, and after due notice to ílie governor, the commission is not conclusive, and the remedy of quo warrcmto is available. A man who claims an office is entitled to a hearing somewhere, and there can be no doubt of the general jurisdiction of the courts by quo warranto; and if this jurisdiction is restricted in the particular case by what has transpired elsewhere, that something should at least amount to an opportunity to be heard there in the mode the law prescribes. A commission issued without a hearing, where the right to a hearing has been asserted and not accorded, is not a legal commission ; and if any commission be final and conclusive in the broad sense contended for by the respondent, it is a legal commission only, and not one which has issued prematurely. When the respondent was commissioned, he was not entitled to any commission, whether in fact ho was duly elected or not. The same law which provided for a commission required it to be withheld, to afford opportunity for the relator to be heard against it. There was, so to speak, a suit pending before the governor; there was to be a trial and while preparation for trial was in progress according to the due course of law, judgment was inadvertently rendered for one of the parties, and the evidence of title was given to him. Strictly speaking, the governor had no power to issue and deliver the commission when it was issued and delivered; and to treat it as prima facAe evidence of right to the office, is yielding it full as much consideration as it deserves.
Judgment reversed.