178 Ga. 230 | Ga. | 1933
Lead Opinion
On May 17, 1903, the plaintiff a¡3 a citizep and
The facts on which the petitioner bases his right to the writ, as set forth in his application, are: that on or about April 14, 1933, Hon. Y. B. Moore, a judge of Fulton superior court, caused the jury-boxes, both grand and petit, to be brought into'his court-room; that he unlocked them, broke the seals, and drew from them from time to time hands full of the small jury tickets therein, each containing the name and address of a person eligible for jury service; that the tickets were not drawn one by one; that the judge did not count the tickets or determine the number removed by him, but handed them to H. G. Bradley, who took them and purported to list the names thereon, and did list 340 names; that at no time during the proceeding, which consumed about two hours, was any announcement made by the judge or any attache that a grand jury for the May-June term of the court was about to be or was being drawn; that the judge did not ascertain or cause the name of any person appearing on such tickets to be read aloud; that he did not cause each name as drawn to be returned to apartment 3 of the jury-box; that he did not write down or cause the writing in his presence of the names on the tickets drawn; that except for opening the box, breaking the seal, and handing the tickets in handfuls to Bradley, the judge did not participate in the drawing and did not determine whether the list of names prepared by Bradley
Headnotes one and two need not be elaborated.
The controlling question is whether or not grand jurors are public officers within the purview of the law of this State in respect to the remedy by writ of quo warranto or information in the nature of quo warranto. Under the Civil Code, § 5451, the writ of quo warranto applies only where the right of any person to a “ public office” is involved, and in section 5454 the remedy applies where civil officers are concerned. The words “civil officers” are obviously used in contradistinction to military officers. If grand jurors are public officers, the remedy sought in this case is applicable; otherwise it is not. If the remedy is not applicable, it is needless to discuss any other question in the case. Incidentally it may be said that it is also unnecessary to discuss applicability of the writ sought to -offices other than public offices. The controlling question has never been decided by this court. Numerous criteria have been mentioned by text-writers and in decided cases, which should be considered in determining whether a person is an officer. No one of them is conclusive in every case, and taken altogether the question is frequently left in doubt. In this State it has been held that
In the light of what has been said in regard to the criteria for determining when one is a public officer, what is the legal status of a grand juror? His position is created by statute and under authority of the superior court, the latter being a creation of the constitution of Georgia. The constitution merely requires that grand juries be selected from “the most experienced, intelligent, and upright men.” Civil Code (1910), § 6546. All persons, however, who perform duties in connection with the superior court, are • not necessarily public officers. A grand juror receives compensation based upon the number of days in which the juror serves. He takes an oath required by law, and performs important pubic duties. All of these are consistent with the position or status of public officers. None of them are conclusive in determining such a status. The grand juror is identified with the government service, but that is not conclusive. The grand jury is an important part of the judicial system. As now constituted, the grand jury performs a service essential to the public in examining into county affairs and into infractions of the penal laws. It is under the direction and control of the judge of the superior court as to its time of functioning and adjournment, and the length of its service. In most of the counties of the State the superior court is required by law to hold at least two regular terms during the year, the dates being fixed by statute. In most of the counties the grand jury actually serves only a few days, ranging from two or three days to two or three weeks, and are dismissed for the term. In the more populous counties the number of terms range from four to six, and the sessions of the grand jury for any term of the court may be ended by
Viewing the question as a whole, it is obvious that for a large part of each year in most counties no persons are serving as grand jurors. We do not overlook the fact that the judge of the superior court may recall grand jurors who have been discharged or adjourned for the term; but that lies within the discretion of the judge. In two other States it has been directly held that grand jurors are not public officers. In State v. Graham, 79 S. C. 116 (60 S. E. 431), the Supreme Court held that “the position of grand jurors is not an office of 'honor and profit’ within the contemplation of the constitution.” In Bradley v. State, 48 Conn. 535, the Supreme Court held: “Although jurors serve the public and perform important duties in the administration of justice, it does not follow that they are officers within the meaning of the constitution and law. Many persons perform duties of a public nature who are not officers. Witnesses, persons assisting sheriffs and other peace officers, persons in the military service, and the like. While the duties thus performed relate to and promote tire public weal, yet the persons performing them lack some of the more important elements. A juror summoned to attend court has no certain term of office. He may be discharged immediately with or without his consent. He may be excused from serving in any or in all cases at the will of either party, and when the term ends ordinarily his duties as a juror end for the year. The oath administered to him
Grand jurors are not legislative nor executive officers. If officeholders, they are judicial officers. Their duties are neither ministerial nor judicial. While performing certain duties essential to the administration of justice, they are not judicial officers. The grand jury, as an institution, comes to us from the common law and is of very ancient origin, but their powers are greatly modified. The abuses to prevent which the grand jury was originally brought into existence as a part of the English system of jurisprudence have largely disappeared, but there remain many important public duties which are required of them. Among the important duties devolving upon a grand jury is the investigation of the conduct of public officers in the performance of their duty, and to indict all persons within their jurisdiction who have violated criminal statutes. The Supreme Court of the United States has declared that “the power and duty of the grand jury to investigate is original and complete, and may be exercised upon its own motion and upon such knowledge as it may derive from any source which it may deem proper.” Ex parte United States, 287 U. S. 241, 250 (53 Sup. Ct. 129), and cit. Mr. Mechem, in his work on Public Offices and Officers, states that “ jurors in their deliberations and verdicts” are exempt from civil liabilities for their “official actions,” based upon their status as “quasi-judicial officers.” He says: “The power and duty to exercise judgment and discretion is not conferred upon those of
In this State the grand jury is lacking in the element of tenure and duration which must exist in order to qualify its members as public officers. That being true, the judgment of the trial court is affirmed, without deciding other issues raised.
Judgment affirmed.
Dissenting Opinion
dissenting. I can not concur in the judgment of the superior court denying the petition of Mr. McDuffie for leave to file an information in the nature of a quo warranto in this case; certainty not for the reason upon which the ruling of the majority of the court is based, to wit, that a grand juror is not a public officer. I am of the opinion that the reason why the question has not been heretofore presented to this court rests on the fact that at common law and in the early history of this State there was never any question that a grand juror was a public officer. Certain essentials of the qualifications are stated by the text-book writers to constitute a public office, or the duties of a public officer; but it is not essential that ail of the characteristics which may under differing circumstances unite to create a specific public office must necessarily join to create a public officer, though of a different kind. It is stated in 46 C. J. 928, § 19: “There are numerous criteria which have been resorted to in determining whether a person is an officer, although no single one is in every case conclusive. It is not necessary that all characteristics of an office, or an officer, found in their various definitions, shall be.