121 Ga. 751 | Ga. | 1905
(After stating the facts.)
It was expressly held in Massenburg v. Commissioners, supra, that it is incompetent for the legislature to directly abolish a constitutional office. Can the legislature, by indirection, accomplish what it is restrained from doing by the organic law of the land ? Among the incidents of public office are the discharge of its duties
The clerk of the court, by this local act, is treasurer of the County of Cobb, or the office of treasurer is extinct. If the clerk is the treasurer, and should be guilty of malpractice in the administration of the functions pertaining to the office of treasurer, could he be removed from the office of clerk of the superior court for such malpractice ? Would it not be a good reply for the clerk to say, “I have faithfully discharged my duties as clerk, and my malfeasance as treasurer can not forfeit my office as clerk ” ? The act declares that the clerk is ex-officio treasurer. If this means that his office is that of “ clerk ” and that his duties comprehend both the duties of clerk and those of county treasurer, then he is not the treasurer, and no such office as county treasurer longer exists. If he is both clerk and treasurer, a malfeasance in the office of treasurer would not justify his expulsion from the office of clerk. Yet the constitution declares that a county officer is removable, “on conviction, for malpractice in office.” Therefore, should the clerk embezzle funds received as county treasurer, he might escape the constitutional penalty of removal from office.
The constitution of 1868 bears internal evidence of the construction that each constitutional office should be filled by a separate individual. Article 3, sec. 1, par. 4, provides that no person holding a military commission or other appointment or office having any emolument or compensation annexed thereto, under this State or the United States, or either of them, except justices of the peace and officers of the militia, shall have a seat in either house of the General Assembly. The office of justice of the peace is a constitutional office, and to entitle the holder of that office to a seat in the General Assembly the framers of the constitution deemed it necessary to make an express exception. The case of Hall v. Burks, 96 Ga. 622, is apparently antagonistic to the con
Judgment-reversed.