56 S.E.2d 285 | Ga. | 1949
(a) In the absence of constitutional or statutory provisions as to the eligibility and qualifications of members of the State Board of Pardons and Paroles, one otherwise eligible is not rendered ineligible to such office, or disqualified from serving as a member of such board, because at the time of his appointment and while serving on the board he was engaged in farming, in the business of banking, and was a member of the State Democratic Executive Committee.
(b) Where a statute enumerates the powers and duties of a member of the State Board of Pardons and Paroles, and provides that such member, while serving on such board, shall not do certain acts, and is silent as to what the penalty shall be upon his doing the acts prohibited, a demurrer to an information in the nature of quo warranto, seeking to oust the member on the ground that he was ineligible and disqualified *150 because he was engaged in the prohibited acts, should have been sustained.
To this information, the respondent filed general and special demurrers. On June 14, 1949, the trial court overruled all of these demurrers. Exceptions pendente lite were filed by the respondent, assigning error on said order. Subsequently the case came on for trial before the court and a jury, and after the introduction of evidence by the plaintiff, the court, on motion of the respondent, entered a judgment of nonsuit. The plaintiff thereupon filed a bill of exceptions, in which error is assigned on an order of the court overruling a motion of the plaintiff to disqualify certain named parties as attorneys for the respondent, and on the order granting the motion for a nonsuit. These assignments of error are before this court on a main bill of exceptions, in case No. 16860. *151
There is also before the court, as a cross-bill of exceptions, case No. 16861, wherein the respondent assigns error on the overruling of his demurrers to the petition.
(a) On September 12, 1949, subsequent to the date on which the trial judge entered his order overruling the demurrers of the respondent, this court, in McLendon v. Everett,
The ruling there made is controlling here. The only difference between the McLendon case and the one at bar, is that in theMcLendon case the plaintiff sought to enjoin Wilburn from occupying the office of and as a member of the State Board of Pardons and Paroles, and from doing any act or thing connected with the duties of the office, and that it be declared that he was not eligible to hold the office. It was further sought to *152 enjoin other defendants from recognizing him as a member of said board; the grounds of his alleged ineligibility and disqualification being the same that are asserted in the instant petition. The McLendon case was dismissed on general demurrer, and the judgment of dismissal was affirmed by this court. We have reexamined the rulings in that case, and think that they are sound. We adhere to the rulings there made, and deny the motion of the plaintiff to overrule that decision.
(b) In addition to the rulings made in the McLendon case, there is another reason, we think, why it was error for the court to overrule the general demurrer. In this case, the plaintiff seeks by quo warranto to oust the respondent from the office he now holds, and to have the same declared vacant. As we have stated, the plaintiff alleged no constitutional or statutory grounds which made the respondent ineligible for appointment as a member of the State Board of Pardons and Paroles, but he seeks to have the court enter an order of ouster of the respondent, by reason of certain acts of the respondent subsequent to his appointment, because such acts amount to a forfeiture of the office. As has been pointed out, there is nothing in the act, defining the powers and duties of members of the State Board of Pardons and Paroles, which provides that the doing of certain acts by a members would operate as a forfeiture of his office. Where one holds a public office, a forfeiture of such office does not follow by reason of doing some particular act forbidden by statute, but must result because of some positive rule of law which declares that the doing of such act shall result in forfeiture. Burkholder v. People,
We are of the opinion that the trial judge erred in overruling the general and special demurrers of the respondent. All subsequent proceedings having been nugatory, it becomes unnecessary to pass upon the assignments of error in the main bill of exceptions.
Judgment reversed on the cross-bill of exceptions; main billdismissed. All the Justices concur.