8 Ga. 230 | Ga. | 1850
By the Court.
delivering the opinion.
To this judgment of ouster on the quo warranto, there was no exception taken, as appears from the record.
The judgment of ouster against Pyron, was rendered at the April Term of Henry Superior Court, 1849. On the 17th day of September, thereafter, a rule nisi was granted, requiring Pyron to show cause, at the next October Term of that Court, why he should not be attached for contempt of the order and judgment of the Court, which declared his appointment void, and ousted him from his said office of Clerk of the Court of Ordinary. The contempt alleged in the rule nisi was, that he had continued to exercise the duties of the office, notwithslanding the judgment of ouster. To this rule nisi, Pyron, the respondent, showed for cause, that he did, in obedience to the order for his removal from office, thenceforward cease to exercise any of the duties, privileges or immunities of said office of Clerk of the Court of Ordinary, until the 20th day of April, 1849, and until his subsequent election to said office by the Justices of the Inferior Court of Henry County, and until his due and legal qualification under said last election.
The respondent annexes, as a part of his showing, an order of a majority of the Justices of the Inferior Court of Henry County, appointing him Clerk of the Court of Ordinary of that County, on the 20th day of April, 1849; said order reciting that, the office of the Clerk of the Court of Ordinary for Henry County had become vacant. The return of the respondent was verified by his affidavit, and does not appear to have been controverted. Upon the hearing the motion, the Court decided, that the respond
The only question made for our judgment upon this record is, whether Pyron, the respondent, was in contempt of the order or judgment of the Court, ousting him from his office, held under his first appointment, made on the second Monday in January, 1849. It does not appear that the judgment of the Superior Court of Henry County, upon the quo warranto ousting Pyron from office, decided any thing in relation to the validity of the election of John H. Lowe, in January, 1849 ; as to that question, the record is silent, and we infer, that the Court below did not consider that question as decided, from the fact that, in the last judgment holding Pyron to be in contempt, the books and papers appertaining to the office, are ordered to-be turned over to John H. Lowe, the Clerk holding a commission dated in 1847.
The judgment of the Court, upon the hearing of the quo warranto, was, that Pyron be removed from office, upon the ground he was not elected according to law. The only election of Pyron to the office of Clerk of the Court of Ordinary of Henry County, embraced by this judgment, was the one had on the second Monday in January, 1849. The validity of no other election of Pyron was in issue before the Court on the hearing of the quo warranto.
The answer of the respondent to the rule nisi explicitly states, that in obedience to the order of the Court for his removal from office, he did thenceforward cease to exercise any of the duties, privileges or immunities of the said office, until the 20th day of April, 1849, and until his subsequent election to said office, by the Justices of the Court of Ordinary of said County of Henry; that pursuant to said last election and qualification, under the judgment and authority of said Justies of the Inferior Court, so appointing him Clerk as aforesaid, he has exercised the duties,
This answer of the respondent does not appear to have been controverted, and, in our judgment, he fully purged himself of any contempt of the order of the Court on the quo warranto. He never exercised the duties of the office of Clerk of the Court of Ordinary, under the appointment which the judgment of the Court, on the quo warranto, declared to have been illegal, subsequent to the rendition of that judgment, but under a nexo and distinct appointment from that which the Court, by its judgment, had vacated upon the hearing of the quo waxranto.
The latter election was, prima facie, valid — the facts necessary to authorize an election by the Justices of the Inferior Court appearing on the face of the order made therefor.
By the Act of 1820, it is made the duty of the Justices of the Inferior Court, or a majority of them, when any vacancy happens in the office of Clerk of the Court of Ordinary, by death, resignation or otherwise, to proceed, without delay, to appoint some fit and proper person to fill such vacancy. Hotchkiss, 690. The order of the Inferior Court of Henry County, ordering the election on the 20th April, 1849, recites, that there is a vacancy in the office, and that the Court proceed, without delay, to fill such vacancy ; whereupon, Pyron, the respondent, was declared duly elected.
It is in virtue of this last election, and under the authority thereof, and none other, that the respondent was exercising the duties of the office of Clerk of the Court of Ordinary of Henry County; according to the answer of respondent, consequently, he was not acting under the authority of, or by virtue of the appointment made in January, 1849, which the Court, by its judgment on the quo warranto, declared to have been illegal. The election of the 20th April, 1849, was not adjudicated by the Court, on the quo warranto — the validity of that election was not embraced in that judgment, therefore the exercise of the duties of the office of Cleric, under the new appointment, was no con
Let the judgment of the Court below be reversed.