188 Ga. 56 | Ga. | 1939
Lead Opinion
H. T. Walton brought against C. M. Davis a quo warranto proceeding to try the title to the office of Commissioner of Boads and Revenue of Stewart County, created under the act approved August 20, 1927 (Ga. Laws-1927, p. 654). The respondent filed demurrers and an answer. The case was tried on the pleadings and on an agreed statement of facts. It was stipulated that Davis was elected and commissioned for the term beginning January 1, 1937, and ending January 1, 1941; that he qualified by giving the bond and taking the oath, and was holding the office under this commission; that Walton was elected on January 10, 1939, and commissioned on January 12, 1939, for the term beginning on that date and ending January 1, 1941; and that he took the oath and gave the bond, and was claiming the office under this commission. The grand jury at the October term, 1938, found, and in their general presentments reported, that the respondent had been wasteful and inefficient, and had wrongfully and fraudulently conducted the affairs of his office. The succeeding grand jury concurred in the previous grand jury’s findings, and recommended that the office be declared vacant by order of the judge of the superior court. Such order was passed; the clerk of the superior court called a special election to fill the vacancy; the relator was elected, received his commission from the Governor, and undertook to take charge of the office, but Davis refused to surrender the office. The respondent by demurrer and answer challenged the constitutionality of section 26 of the act above referred to, under which the grand juries, the clerk, and the judge had proceeded. His insistence was that the section was in conflict with several designated provisions of both State and Federal constitutions, including the due-process clause. The provisions of said section were by the judge declared unconstitutional, null and void;
Section 26 of the act of 1927 declares, in effect, that upon the finding by two successive grand juries that the said commissioner “has violated any of the terms of this act, or that he has been wasteful or inefficient,” etc., his office shall be declared vacant by the order of the judge of the superior court of said county. We have here a provision for the removal of the commissioner for definite and specified causes; and the issue to be determined is whether in such a case it is a violation of constitutional guaranties to oust him from office on a finding by the two grand juries that he is guilty of the specific charges, without having given him a hearing and an opportunity to make defense.
As early as State ex rel. Savannah v. Dews, R. M. Charlton, 397, 400, 401, it was said: “That a public office is the property of him to whom the execution of its duties is intrusted is repugnant to the institutions of our country, and is at issue with that universal understanding of the community which is the result of those institutions. Public officers are, in this country, but the agents of the body politic, constituted to discharge services for the benefit of the people, under laws which the people have prescribed.” That doctrine has been repeatedly recognized by this court. City Council of Augusta v. Sweeney, 44 Ga. 463, 465 (9 Am. R. 172); Collins v. Russell, 107 Ga. 423, 426 (33 S. E. 444); Dallis v. Griffin, 117 Ga. 408 (43 S. E. 758); Waters v. McDowell, 126 Ga. 807, 809 (56 S. E. 95); Gray v. McLendon, 134 Ga. 224 (2, 4, 7) (67 S. E. 859); Talmadge v. Cordell, 167 Ga. 594 (14), 599 (146 S. E. 467); Felton v. Huiet, 178 Ga. 311 (3, 4) (173 S. E. 660). The broad statement that a public office is not property within the sense of the constitutional guaranties of due process of law does not mean that an officer duly inducted into his office for a definite term may be deprived of its possession without a hearing, when the right to have it terminate is limited to specified causes. The statement that public office is not property means that it is not property in the sense that an officer is not denied due process of law by the abolition of his office before the expiration of his term, or by the passage of a statute limiting or reducing his compensation, and that an officer has no property right in the books and papers pertaining to his office. See 12 C. J. 1214, § 989, and cit. In Sut
The first headnote in Coleman v. Glenn, 103 Ga. 458 (30 S. E. 297, 68 Am. St. R. 108), reads as follows: “A statute declaring that a county officer, elected for a fixed term, ‘shall be removable' from his office ‘by the judge of the superior court of the county, on the address of two thirds of the grand jury, for inefficiency, incapacity, general neglect of duty, or malfeasance or corruption in office/ but which makes no pfovision for any notice to such officer, or for a hearing of the charge or charges against him, with opportunity to make his defense, is unconstitutional; and an order of removal based upon such a statute is a mere nullity.” It was a decision by a full bench, except that Justice Little (for reasons that do not appear) concurred specially. In Gray v. McLendon, supra, attention was called to the fact that on an examination of the original record in Coleman v. Glenn it was found that neither the constitution nor any provision thereof was referred to therein. Nevertheless the petition therein asserted that the grand jury acted “without law or legal authority/' that petitioners “without due process of law,” had been deprived of their office; that “said grand jury acted without law or legal authority in recommending that your petitioners be removed from office, as said grand jury failed to give your petitioners an opportunity to vindicate and defend their official acts, and your honors have removed them instanter from office without giving them a hearing.” Among the prayers was one that the recommendation of the grand jury be declared inoperative and the order of the judge vacated. Notwithstanding the failure of the pleaders to point out some particular clause of the constitution with which it was claimed the legislative act was in conflict, this court in that case treated the constitutional question as having been,properly raised, and in the opinion said: “It may therefore be considered as settled beyond all doubt or peradventure, that a public officer who has under the law a fixed term of office, and who is removable only, for definite and specified causes, can not be removed without notice and a hearing on the charge or charges preferred against him, with an opportunity to make defense. It follows necessarily that a statute providing for the removal from office of such an officer for inefficiency, incapacity, neglect of duty, or other cause, and which makes no provision for giv
The suggestion of counsel for the plaintiff that this case turns on the American conception of public office, that is, that public office is not property, and the holder has no property right to it, is too narrow a view of the constitutional idea. The right to be heard in respect to charges against him is one of the established principles of justice, older than this court and older than this country. They obtained here before there was a United States, or even a State government. It was the observation of Mr. Justice Matthews in Hurtado v. California, 110 U. S. 516, 531 (4 Sup. Ct. 111, 28
To accept an office created by legislative authority with knowledge of the fact that the holder -may be ousted without cause by the appointing power, or at the will of some one to whom that power has been delegated, is one thing. To be inducted into an office for a fixed term, with the right to have the office declared vacant only for certain specified causes which concern the holder, is a far different thing. In the former, the holder is granted his commission with the proviso that he may be at any time ousted at the will of another; and he takes the office with that understanding and its tenure limited by the possibility that it may be shortened without cause. Gray v. McLendon, Felton v. Huiet, supra. In the latter, the right to deprive the holder of his office, its honor, and its perquisites and emoluments, is dependent upon the determination of certain facts; and before such facts are determined, he is, ae
There is scarcely a right more ancient than that great principle that usually insures the giving of a notice of a charge against one, and with it an opportunity to be heard. Its very source is well-nigh lost in antiquity. It will be remembered that even the Almighty himself, although His wisdom is inscrutable and all His judgments just, did not pass sentence upon Adam until He had first heard the charge against him and he was given an opportunity to make his defense. “Adam, where art thou? Hast thou eaten of the tree whereof I commanded thee that thou shouldest not eat ? And the same question was put also to Eve.” Flint River Steamboat Co. v. Foster, 5 Ga. 194, 202 (48 Am. D. 248).
Judgment affirmed.
Concurrence Opinion
concurring specially. I can not subscribe to the view taken in the opinion of Mr. Justice Grice that the statute in question violates the due-process clause of the State and Federal constitutions, but I am prepared to concur in the judgment of affirmance, because it is my opinion that the statute under which the removal of the commissioner was sought must be treated as contemplating notice and hearing by the grand jury before its recommendation should be made to the judge of the superior court; and that since such notice and hearing was not accorded him, the effect of the judgment below properly leaves him in the office. The legislature has the power to make any provision it may see fit in respect to tenure of public office, so long as its enactments are not expressly forbidden by the constitution, and in order to render them invalid they must come under the condemnation of some one of its provisions. The statute here under consideration does not in its terms provide for any notice and hearing, but specifies that the officer can be removed only after certain findings have been made by the county grand jury in respect to his conduct of the office. It does not forbid notice and hearing; and since undoubtedly, as so ably set forth in the opinion of Mr. Justice Grice, the
Concurrence Opinion
concurring specially. It is recognized in the learned opinion prepared by Justice Grice that the incumbent has no absolute property right in the public office for which he contends. The fourteenth amendment of the Federal constitution guarantees equal protection under the law, and forbids depriving a citizen of his life, liberty, or property without due process of law. It would seem to follow, that, since the incumbent has no property right in the office, the legislature as the sovereign authority could, if it saw proper, make provision for his arbitrary removal; and this without any notice or trial given to the incumbent. This, too, seems to be recognized by Judge Grice’s opinion. In this case, however, the State has not sought to affix to the tenure of the incumbent a provision that he might be arbitrarily removed at the will of the grand jury, but has provided for his removal only upon a finding by that tribunal of malfeasance in office, with the further provision that, upon two such successive findings being made, the incumbent shall be debarred from being a candidate in the election provided for his successor. While it is true enough that the office
