20 S.E.2d 254 | Ga. | 1942
1. The act of the General Assembly creating the board of commissioners of roads and revenues for Clayton County (Ga. L. 1910, p. 256) provides that the "commissioners shall be freeholders and qualified voters of said county and shall reside in the road district from which they are elected." Under this provision of the act a person must be a freeholder of Clayton County in order to be eligible to hold office as a commissioner.
2. After the respondent had been elected and had entered upon the performance of his duties as commissioner of roads and revenues for district No. 3 of Clayton County, but before the institution of the instant quo warranto proceedings to test his right to hold the office, the original act of 1910 was amended by an act redefining the areas comprising the five road districts of Clayton County, and naming and appointing the respondent to hold office as commissioner for new District No. 3. The fact that the legislature thus named and appointed the respondent, who was not a freeholder of Clayton County, did not work an implied repeal of the requirement of the original act that commissioners should be freeholders of the county. Neither did the appointment by the legislature raise a conclusive presumption of the respondent's eligibility. It thus appearing from the facts alleged that the respondent is ineligible to hold office as a commissioner, because he is not a freeholder of Clayton County, the court erred in sustaining his general demurrer and dismissing the quo warranto proceeding.
2. On February 26, 1941, the act creating the board of commissioners of roads and revenues for Clayton County was amended. Ga. L. 1941, p. 818. That act, after redefining the areas comprising the five road districts of the county, named and appointed commissioners for each of the districts as thus defined. J. D. McElroy, the respondent, was named commissioner for district No. 3. It is contended that by naming the respondent to the office this act repealed the requirement of the original act that he should be a freeholder of the county. There is no merit in this contention. The amendatory act does not purport to change the portion of the original act requiring the commissioners to be freeholders and qualified voters of the county. Repeals by implication are never favored; and not even an implication of an intention to repeal can be found in the circumstances of the instant case. The legislature merely named as commissioner for the new district No. 3 the person who had been previously elected commissioner for old district No. 3. There is nothing to show that the legislature was aware that the person thus named was not eligible to hold the office. Neither does the fact that the legislature named the respondent as one of the commissioners of roads create a conclusive presumption that he was qualified and eligible to hold the office. Malone v.Minchew,
Judgment reversed. All the Justices concur.