State ex rel. Fulgham v. Johnson

40 Ga. 164 | Ga. | 1869

Warner, J.

This was an application made to the Court below by the plaintiff in error, for a rule calling upon the defendant to show cause why an attachment should not issue against Jiim. for contempt for continuing to exercise and perform the duties of tax-collector of Pulaski county after there had been a judgment of ouster rendered against, him by the Superior Court. It appears from the record that a quo warranto had been sued out in the name of the State, on the relation of Fulgham,.who claimed to be the legally elected tax-collector of said county, against Johnson, alleging that the latter had. usurped the office of tax-collector, and assumed to perform and exercise the duties' thereof without authority of law. On the trial of this issue the judgment of the Court was, that Fulgham was the legally elected tax-collector, and that Johnson was not, and judgment of ouster was rendered against him. The Court ordered a certified copy of the judgment to be transmitted to the Governor of the State for his action.

The issuing of a writ of quo warranto is not a proceeding on the equity side of the Court, but is a common law proceeding ; 3d Bl. Com., 257, 262. The legal effect of the judgment was to oust the defendant from the office of tax-collector, without more, and to render null and void all his pretended official acts as such tax-collector, after the rendition of such judgment, and thus1 deprive him of all official authority, as such tax-collector, to interfere in any way with the legal rights of the citizens of that county in that capacity. The Court below acted upon the legal presumption (as it had the right to. do) that the Governor of the State, when officially informed of the judgment of the Court rendered in the case, that he would prompt comply therewith, and issue a commission to the party, who, under the law, as declared by the judgment of the proper and competent tribunal of the State, is entitled to it. In the monarchial government of England the king never fails to comply with the judgments of his Courts even when a right is claimed against the Crown, and as was said by this Court in Lowe vs. Towns, Governor, 8th Georgia Reports, 373, “to presume that the Executive officer of the State would withhold the commission from one who has been judicially declared by a Court of competent jurisdiction, legally elected to the office, would be to say that such officer was above the laws of the people; that he had the right to exercise despotic power regardless of the laws of the people, and in the language of Chief Justice Marshall, at his discretion sport away the vested rights of individuals secured and protected by the laios of the land.” In our judgment, the Court below did not err in refusing the application for an attachment, and in giving the direction to the case which he did. Let the judgment of the Court below be affirmed.