139 Ga. 614 | Ga. | 1913
This was an information in the nature of quo warranto brought by Robert 6. Mitchell Jr., claiming the office of judge of the city court of Blackshear, against Walter A. Milton, to inquire into the right of the latter to such office. Mitchell’s petition set forth that he claimed to be the duly appointed, qualified, and commissioned judge of that court, “and as such applies for leave to file in behalf of himself the accompanying information in the nature of a quo warranto, in order that he may inquire into the right of respondent W. A. Milton, therein named, to hold the office of judge and exercise the duties thereof of judge of the city court of Blackshear.” The petition further stated that Mitchell challenged the right of Milton to such office, on the ground that he was not entitled thereto, “notwithstanding the fact that he is trying to exercise the duties of said office, to which he claims the right and title.” The prayers of the petition were, that leave be granted to file the information, and that “the writ of quo warranto issue, calling upon respondent, the said W. A. Milton, to show cause why he should not be ousted from office oh account of the fact that he has no legal right to same.” ' Accompanying the petition was an information in which Mitchell sought
At the hearing, by demurrer and plea in abatement, Milton made the point that the information was prematurely filed, because no rule nisi based upon a verified petition had been granted, calling upon him to show cause why leave to file an information should not be ordered, and therefore that he had been deprived of an opportunity to show- cause why leave to file an information should not be given.
The judge, in our opinion, upon presentation to him of the petition and “accompanying information” properly verified, was authorized, without a rule nisi, to grant leave for the filing of the information, and at the same time to pass an order calling upon the respondent to show cause on a subsequent date why, for the reasons stated in the proceedings brought against him, he should not be ousted from the office the duties of which he was then discharging. At this time of practical unanimity in the effort, on the part of all interested in the administration of the law, to simplify judicial proceedings, to break away from mere technicalities, and to avoid vexatious and expensive delays, we are unwilling to hold, in a case of information in the nature of quo warranto
It appears from an examination of the case of Harris v. Pounds, 66 Ga. 123, that the question of practice which we are now considering was not involved. There a petition was presented to the judge, praying that a rule nisi be issued, calling upon the respondents to show cause why leave to file an information against them should not be granted; and it was held that such petition should be verified by positive affidavit as to the facts upon which the petitioners based their title, but the facts concerning usurpation might be verified on information and belief. This rule was followed in McWilliams v. Jacobs, 128 Ga. 375 (57 S. E. 509); wherein, as the record of file in this court shows, there was no petition for a rule nisi calling upon the respondent to show cause why leave should not be granted to file an information. In the opinion it' was said: “We know of no provision of law which requires notice to be given the alleged usurper of an office of an application for leave to file such information.” The proceedings there were similar to those in the case at bar. In that case there was a petition accompanied by an information, and the affidavit followed the information; and it was in éffect held that the verification of the petition fully complied with the rule stated in Harris v. Pounds, süpra. It follows from what has been said, that the judge properly overruled the demurrer as to the point above discussed, as well as the plea in abatement raising the same question.
The petition and information, considered as one proceeding, was not subject to special demurrer on-any of the following grounds: (a) it did not. appear upon what facts Mitchell claimed the office; (5) it was not alleged that Milton was holding the office of judge ■of the city court of Blackshear or was exercising the duties thereof; (c) or because it was not alleged when Mitchell’s term of office as judge began or ended. We will deal specifically only with the last-stated ground, as we think the other grounds are so obviously without'merit as not to require further consideration.
On September 5, 1912, the proceedings were brought by Mitchell claiming the office of judge of the city court of Blackshear, to inquire into the right of Milton to hold such office, the duties of which, it is alleged, he was then discharging. The question for ■determination, presented by the allegations made by Mitchell, was, who, at the time of the institution of his proceedings, had the legal right, he or Milton, to the office of judge of the city court of Blackshear? The respective claims of both of them were set forth; and if the allegations in relation thereto should be true, then the question as to who, at the time of the eommenbement of the proceedings, was entitled to the office could be readily determined without inquiring as to when the term of Mitchell began, .as it sufficiently appeared by his allegations that it began prior-to the filing of the information. And even-if it were material, under the facts alleged, to inquire when his term would end, if it should be decided that he was entitled to the office, the judge trying the case would take judicial cognizance of the act of the General Assembly establishing the city court of Blackshear, and fixing the term of the office of judge of the court, which act will be ■considered in the last division of this opinion.
The judge of the superior court, after hearing the case upon the information' and the answer and the agreed' statement of facts, adjudged Mitchell to be the lawfully appointed, commissioned, and qualified judge of the city court of Blackshear, and entitled to use, hold, and exercise such office, and perform its duties and functions and to receive the emoluments thereof, and that Milton was not entitled to hold such office or perform its duties or enjoy its emoluments, and ordered that Milton be excluded and ousted from the office.
As to the filling of a vacancy in the office of judge of the city court of Blackshear the act of 1911 (Acts 1911, p. 210), creating the city court of Blackshear, may be construed in two ways. By one construction it appears as a harmonious whole; by the other, the two parts of the act are in conflict with each other. It provides for a term of four years from the date of the approval of the act, to be filled by appointment of the Governor and approval of the Senate. After the expiration of such four-year term, 'a provision was made for the judge to be elected by the people. Then occurs the expression, “Should there be a vacancy in said office of judge from any cause whatsoever, the said vacancy shall be filled in the same manner as vacancies in the office of judge of the superior court are now filled.” It is contended that under this provision, as soon as the Senate adjourned in 1911 without confirming or-acting upon the nomination of Milton, a vacancy existed in the office, and that the Governor should fill such vacancy as a vacancy in the office of judge of the superior court would be filled, that is,.
In the agreed statement of facts it was stated that the name of Milton was sent by the Governor to the Senate during its session in 1911 for confirmation, and that they did not act upon it, but returned it to the Governor for some reason not stated in the record. After they adjourned, the Governor appointed Milton to the office. By the terms of his order of appointment and the commission issued thereunder, Milton was appointed subject to confirmation by the Senate at its next session. Such session was held in 1912. While in the meantime Governor Smith had been succeeded by Governor Brown, yet the office of Governor was not vacant, but was continued; and the appointing power is not conferred upon any particular individual who for the given time may be Governor, but is conferred upon the Governor, who may be in office at the time when
It follows from what has been said, that all the rulings and the judgment of the trial court complained of in the bill of exceptions sued out by the respondent, Milton, are affirmed. The judgment on the main bill of exceptions being affirmed, the crqss-bill sued out by the relator, Mitchell, is dismissed.
Judgment on the main bill of exceptions affirmed. Crossrbill dismissed.