155 Ga. 377 | Ga. | 1923
Lead Opinion
On January 2d, 1923, C. E. McGregor applied for and was granted leave to file an information in the nature of quo warranto against John W. Clark. The petition for quo warranto alleges, that in the election held November 7, 1922, McGregor was duly elected to the office of Pension Commissioner; that this fact was duly certified by the Secretary of State to the Governor; that
Clark, the respondent, demurred upon the grounds: (1) said information does not show any ground for the issuance of the writ of quo warranto, or for the other relief prayed; (2) it does not appear from the facts stated that respondent’s term of office has expired, or that relator’s term of office has commenced; (3) it does not appear that the time fixed by the law for the termination of respondent’s term of office has arrived; (4) it does not appear that the relator has qualified for the alleged office; (5) the act of 1918 referred to in the petition, construed in connection with the other statutes, does not mean that respondent’s term of office expires January 1st; (6) if it should be held that respondent’s office is embraced within the third section of said act, that section is unconstitutional and void for the reason that it is in conflict with art. 3, sec. 7, par. 8, of the State constitution (Civil Code (1910), § 6437), which provides that no law or ordinance shall pass which refers to more than one subject-matter, or contains matter different from that expressed in the title thereof; that said act is defective in both these respects, because the title makes reference only to “ the manner in which the returns 'of elections for Secretary of State, Treasurer, Comptroller-General, and all other State-House Officers who are to be commissioned by the Governor shall be made, and for other purposes,” whereas the third section of said act purports to contain a provision in regard to changes in
From the foregoing statement of the pleadings it will be apparent that the sole issue is whether the term of office of the Commissioner of Pensions begins on the first day of January next after the election, as contended by the petitioner; or whether it begins in June next after the election, as contended by the respondent. Admittedly the term of office continues for two years. Before considering the precise questions made by the demurrer to the petition, it may be useful to trace’ the history of the legislation creating the office of Commissioner of Pensions in Georgia, and to recite the legislation and portions of the constitution bearing on the question involved. The office was originally created in the year 1896, and by the terms of the act was for a term of three years, and it was provided that the Commissioner “shall be appointed by the Governor.” By the express terms of this act in section 5 it was provided that “this office shall continue for six years only, unless continued by further legislation.” It was also provided that all records, books, etc., shall be kept open to inspection and under the charge and direction of the Governor, and all rulings made by said commissioner shall be subject to revision and change by the Governor. Ga. Laws 1896, p. 65. In the year 1901 section 5 of the act of 1896 was so amended as to provide: “This office shall continue for fifteen years only, unless continued by further legislation.” Acts 1901, p. 58. In the year 1908 the General Assembly passed an act providing that the Commissioner of Pensions shall be elected by the electors of the whole State who are entitled to vote for members of the General Assembly. This act in section 3 further provided “ that said election shall be held under the same rules and regulations as now apply to the election of Governor, State-House officers, and members of the General Assembly, and . . shall begin and end in the same way and at the same time with the Governor and all State-House officers so elected.” The fifth section of said act further provides that “In case of a vacancy in said office, causing an unexpired term, the’ same shall be filled by executive appointment, and the person so appointed shall hold said office for the balance of the unexpired
The Civil Code (1910), § .262, provides that the following officers must be commissioned with the great seal of State annexed thereto, signed by the Governor and countersigned by the Secretary of State, to wit: Attorney General, State Treasurer, Comptroller-General, etc. Section 263 provides that all other civil officers of the State or County, not mentioned in the preceding section, shall be commissioned under the seal of the Executive Department, signed by the Governor and countersigned by one of his secretaries, etc. The Commissioner of Pensions is a civil officer not included in section 262, and is included within the provisions of section 263.
Thus stood the law until August 19, 1918, and until the present time, unless the act of the General Assembly approved on that date, as amended, changed the law in regard to the time when the term of the Commissioner of Pensions began. That act (Ga. Laws 1918, p. 154) is in part as follows: “ Ah act ,to prescribe the manner in which the returns of elections for Secretary of State, Treasurer, Comptroller-General, and all other State-House officers, who are to be commissioned by the Governor, shall be made, and for other purposes. . Section 1. Be it enacted by the General Assembly of the State of Georgia, and it is hereby enacted
On August 15, 1921, the following act was passed by the General Assembly: “.An Act to amend an Act approved August 19, 1918, which act provides how the returns of elections for State Treasurer, Comptroller-General, and other State-House Officers shall be made. Section 1. Be it enacted by the General Assembly of the State of Georgia, and it is hereby enacted by authority of the same, that Section 2 of the above-recited act be amended by striking from [?] said section 2, and inserting in lieu thereof a section to be known as section 2 of said act, as follows: ‘ That the returns of the election of every civil officer who is to be commissioned by the Governor shall be sealed up in a separate package and transmitted to the Secretary of State, whose duty it shall be to open the returns, consolidate the vote and declare the result, and certify to the Governor the names of persons elected, and the Governor shall issue • commissions to such officers as shall .appear
The Secretary of State, the Treasurer, and the Comptroller-General are “ State-House Officers,” in contemplation of the law as found in the act of 1918. They are so treated in the act.
An exhaustive and satisfactory definition of the phrase “ State-House Officer ” would be most difficult to state, and under the pleadings in this case it is obviously unnecessary. We need only to inquire, on this phase, if the Commissioner of Pensions is such “ State-House Officer ” as those mentioned in the act of 1918. We hold that the Commissioner of Pensions is not such a “ State-House Officer.” The office of Pension Commissioner differs in several important particulars from such offices as Secretary of State, Treasurer, Comptroller-General and Attorney-General. The office of Commissioner of Pensions, when created, was not intended to be a permanent office. It was an appointive office the term of which was three years. As at first created it was to automatically terminate in six years. Subsequently the time for its termination was extended to fifteen years, and subsequently to that to twenty-five years; and in 1920 the act was passed which provided that “ the term of the office of Commissioner of Pensions ” shall continue until otherwise provided by law. The language,of the last-named act is somewhat ambiguous, in that it undertakes to extend the “term” of the office of Pension Commissioner. ' The question is not specifically made by the pleadings as to whether this act simply made the tenure of office indefinite during good behavior until otherwise provided, or whether, notwithstanding the inadvertent use of the word “term,” the intention of the legislature was really to continue, until otherwise provided by law, the “ office ” of Commissioner of Pensions. Without deciding that question we will assume that both parties treat this act as continuing the “ office,” and not the “ term ” of office. As shown above, the entire management of the office and all rulings made by the Commissioner of Pensions are subject to the revision of and change by the Governor. These material and important differences, we think, are sufficient to show that the office of Pension Commissioner cannot be considered as embraced in the term “ State-House Officer.”
This brings us to the question whether the act of 1921 (Ga. L. 1921, p. 232) brings about a change, the result of which brings the office of Commissioner of Pensions within the provisions of the act of 1918 as amended. Our opinion is that it does not have that effect. This, we think, is true for more than one reason. First, the provisions of the act of 1918, as constitutionally affected by its caption, have reference only to the election returns of StateHouse Officers, and the Commissioner of Pensions is not a StateHouse Officer. The act of 1921 does not undertake to amend the caption of the act of 1918. The act of 1921 employs words of broader significance than those used in the act of 1918. It has reference to the returns of the election “of other civil officers,” etc. “Civil officer,” as used in the amendment, is not necessarily a “ State-House Officer.” The Commissioner, of Pensions is a “ civil officer,” but not a “ State-House Officer.” It undertakes to amend the act of 1918, and here again we find language containing the element of uncertainty. The last act uses these words: “ That section 2 of the above-recited act be amended by striking
Applying the' principles quoted, we think it is clear that there has been no repeal of the act of 1908 by implication. Furthermore, as we have held that the act of 1918, when approved, did not change the law, the next question would be whether the act of 1921, even if conceded to- have reference tó the Commissioner of Pensions, and furthermore to be a valid amendment of the act of Í918 in that particular, would have the effect of repealing impliedly the former law in regard to the Commissioner of Pensions by the act of 1918, when the amendment was passed and approved three years thereafter. This view must necessarily be rejected, because such implied repeal is not justified by reason or authority. The
One of the grounds of demurrer, as shown above, was that the third section of the act of 1918 is in conflict with art. 3, sec. 7, par. 8, of the State constitution (Civil Code (1910), § 6437), which provides: “No law or.ordinance shall pass which refers to more than 'one subject-matter, or contains matter different from what is expressed in the title thereof.” It is contended that this section offends the constitution in both of the above-stated particulars; that is, that the caption of the act refers only to how the returns of elections for certain public officers shall be made, whereas sections 1 and 2 provide in accordance with the caption for the returns of elections of officers mentioned, and section 3 provides “that the terms of the officers last mentioned shall commence on the first day of January next after they are elected.” We think the trial judge correctly sustained this demurrer, because the act is obviously unconstitutional for both of the reasons assigned. The caption of the act refers to only one subject-matter, to wit, the returns of elections. It makes no reference to any other subject; and while it does contain the phrase “ and for other purposes,” as is usually found in acts of the General Assembly, this phrase is not broad enought to cover the totally distinct, separate, and important legislation with reference to the terms of State-House Officers and when they shall begin. We are familiar with the previous rulings in regard to the meaning of the phrase above quoted. We are aware that a substantial and not a' literal compliance with the provisions of the constitution above named is'all that is necessary; that it was never contemplated that the title should give a. complete synopsis of the act; that the title need only indicate the general scope and purpose
5. Plaintiff in error in his brief and in his argument before this court contended that the demurrers ’were speaking, and insufficient to raise the issues adjudicated by the trial court. In this we cannot concur. The demurrers are not subject to the criticism made.
Judgment affirmed.
Concurrence Opinion
I concur in the result reached in this case, because I am of the opinion that section 3 of the act of 1918 referred to in the opinion is unconstitutional. I do not concur in the opinion of the majority that the Pension Commissioner is not a StateHouse Officer. I think that officer falls within the proper definition of the term, “ State-House Officer.”