170 Ga. 562 | Ga. | 1930
Lead Opinion
The exception in this case is to a judgment refusing to sanction and permit the filing of an information in the
Is the judgment complained of such a final judgment as will afford a basis for a direct bill of exceptions to this court ?
In Avery v. Bower, 170 Ga. 202 (152 S. E. 239), it was held that a failure to obtain leave of the court to file such an information was an amendable defect. In Milton v. Mitchell, 139 Ga. 614, 616 (77 S. E. 821), and in Garrett v. Cowart, 149 Ga. 557, 560 (101 S. E. 186), this court said: “In this State there is no statute specifically prescribing the procedure in a quo warranto proceeding
Is the applicant ineligible to hold the office because of the provision oE tlie Civil Code (1910), § 258, par. 7? It is there declared: “No person shall be eligible to hold any county office in any county of this State, unless he shall have been bona fide a citizen of the county in which he shall be elected or appointed at least two years prior to his election or appointment, and is a qualified voter entitled to vote.” That section expressly applies to county officers, and to no other officers. Is a notary public and ex-officio justice of the peace a county officer? If not, that section of the Code has no application and will aíford no bar to the eligibility of the applicant. • Notaries public ex-officio justices of the peace stand upon the same basis as the justices of the peace.
In Long v. State, 127 Ga. 285, 286 (56 S. E. 424), Mr. Justice Atkinson, speaking for the court, said: “A justice of the peace is not a municipal officer in any sense. A justice of the peace sometimes performs functions which, under other circumstances, are performed by a county officer. While a justice of the peace might possibly be classed as in a certain sense a county officer, this is really not the true way of designating the office that he holds. The justice court over which he presides is a part of the State judicial system. It is a constitutional court, and'there is constitutional provision for his election by the legal voters of his district. He is an officer of the State. While his functions can be exercised only in a given county, and generally in the district of his residence only, he is nevertheless an officer of the State.” And see Bashlor v. Bacon, 168 Ga. 370 (147 S. E. 762). The Long case was not a unanimous decision, because of the absence of the Chief Justice, but there was no dissent. We think the reasoning sound, and accordingly hold that a notary public ex-officio justice of the peace is not a county officer. It follows that section 258 of the Civil Code of 1910 has no application in the present case. Section 4661 provides: “All persons are eligible to the office of justice of the peace who are entitled, in the county in which the district is situated, to vote for members of the General Assembly, who have
Under the constitution, every citizen of this State, laboring under no disabilities of age or otherwise, is an elector and entitled to register and vote. Art. 2, sec. 1, par. 2; Civil Code (1910), § 6396. See also Code § 34. The next paragraph of the constitution, found in the Civil Code, § 6397, provides that “to entitle a person to register and vote at any election of the people he shall have resided in the State one year next preceding the election, and in the county in which he offers to vote six months next preceding the election, and shall have paid all taxes [italics ours] which may have been required of him . ' . at least six months prior to the election at which he offers to vote.” To what election, therefore, would this provision point in the case of the applicant, Overton? He paid all such taxes and registered a few days prior to his appointment by the judge. The Code, § 4661, provides that justices of the peace must be qualified to vote for members of the General Assembly, and we think the same rule applies to notaries public and ex-officio justices of the peace. So construed, it follows that if such notary public has resided in the district three months next preceding his appointment and is a qualified voter in an election for members of the General Assembly, he is an eligible voter in so far as it affects his appointment to that office. He was appointed in December, 1929. The next election for members of the General Assembly after such appointment is in November, 1930. All taxes having been paid prior to registration in December, 1929, the applicant was an eligible voter at the time of his appointment. The Civil Code (1910), § 2165, declares: “Among the rights of citizens are the enjoyment of personal security, of personal liberty, private property and the disposition thereof, the elective franchise,
Quo warranto, or an information in the nature of quo warranto, is the appropriate remedy to try title to a public office. Civil Code (1910), § 5451; Stanford v. Lynch, 147 Ga. 518 (94 S. E. 1001), and cit. The fact that the commission is withheld presents no bar to the right of action. The uncertainty of title may furnish the reason for withholding the commission. In many of the eases in which by quo warranto title has been adjudicated, the petitioner had not received his commission. The suit was necessary to obtain the commission. In some cases the adverse party held commission. All public officers must be presumed ready to perform their duties. It must be presumed that the Governor of the State is law-abiding, that he withholds the commission in this case merely to await an adjudication of title, and that when that has been done he will promptly issue a commission to that person held by the courts to be entitled thereto. The petitioner can not qualify for or enter upon the duties of the office until he has a commission. It is to be assumed that when the title is adjudicated and the commission received Overton will qualify and enter upon the discharge of his duties. If Overton must have his commission and qualify before he can bring his suit, and the Governor will not issue the commission until the title has been adjudicated, then Overton has a right but no remedy, for he can not bring mandamus against the Governor. Bonner v. State, ex rel. Pitts, 7 Ga. 473; State ex rel. Low v. Towns, 8 Ga. 360. “A commission issued by the Governor of the State Is prima facie evidence of title to the office in the person named therein; but it is not conclusive in cases where
Rehearing
ON MOTION FOR REHEARING.
defendant in error, hied a motion for rehearing on the ground that the court has overlooked Civil Code (1910) § 4650, which provides: “The governor shall not issue a commission to any notary public ex-officio justice of the peace, unless it shall appear from the order of appointment that such appointment was made at the term of the court next preceding the vacancy, or at some succeeding term after such vacancy has occurred.” Movant points out paragraphs one, two, and live of the petition of Overton, where it is alleged that “In October, 1925, C. T. Gandy, a citizen of said county, was appointed notary public and ex-officio justice of the peace . . upon recommendation of the grand jury serving at the October, 1925, term. The four-year term of office provided by the commission so issued to the said C. T. Gandy expired on the 26th day of October 1929,” and that in pursuance of the “recommendation of the grand jury . . the presiding judge, on the 28th day of October, 1929, passed an order appointing the said A. E. Overton to the said office.” The motion for rehearing makes no complaint of any ruling made by this court, except in the respect just stated.
There are several reasons why no rehearing should be granted. First: The application of Code § 4650 was not mentioned anywhere in the record, or in the brief of either of the parties to the case. If that section has any bearing, it must be solely for the
Second: The Code section in question obviously was passed by the General Assembly to prevent premature recommendations and appointments for the office by trickery or fraud at such time as the public and the incumbent were unaware that applicants were seeking recommendation and appointment. The language of the section is not clear, but to give it a literal meaning would be to subvert the very purpose for which it was enacted. Moreover, the statute must be construed in the light of the constitution; and the constitution provides that when appointments to such office are made by the judges of the superior court upon recommendation of the grand jury, the appointees “shall be commissioned by the Governor.” The duty of making such appointment is on the judge, not on the superior court, and his action is not reviewable by the Supreme Court. Steinheimer v. Jones, 114 Ga. 349 (supra).
Third: If it be conceded that movant properly construes the Code section, then the order appointing C. T. Gandy in October, 1925, according to the facts alleged in the petition, was void, and Gandy had been holding the office for more than four years on a void appointment, with no title whatever to the office. It would
These seem to be sufficient reasons for overruling the motion, and it is so ordered.