Walton v. Davis

• Decision Date: 13 April 1939
• Docket Number: 12765.
• Citation: 2 S.E.2d 603,188 Ga. 56
• Parties: WALTON v. DAVIS.
• Court: Georgia Supreme Court

2 S.E.2d 603

188 Ga. 56

WALTON v. DAVIS.

No. 12765.

Supreme Court of Georgia

April 13, 1939

Syllabus by the Court.

Section 26 of the act approved August 23, 1927, Georgia Laws 1927 pp. 654, 664, 665, which declares that the office of a county commissioner, elected for a fixed term, shall be by order of the judge of the superior court declared vacant upon the address of the majority of two successive grand juries, for certain causes therein named, but which makes no provision 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 in that it violates the due-process clause of the State and United States constitutions Const.Ga. art. 1, § 1, par. 3; U.S. C.A.Const Amend. 14; and an order of removal based upon such legislation is a mere nullity.

Fort Fort & Fort, of Americus, and R. S. Wimberly, of Lumpkin, for plaintiff in error.

Dykes & Dykes, of Americus, and G. Y. Harrell, of Lumpkin, for defendant in error.

GRICE Justice.

H. T. Walton brought against C. M. Davis a quo warranto proceeding to try the title to the office of commissioner of roads and revenues of Stewart County, created under the act approved August 23, 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 Cotober 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 other was passed; that 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; and relator was denied title to the office. To this ruling he excepted.

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. Mayor, etc., of City of Savannah v. Dews, R. M. Charlt. 397, 400, 401, it was said: 'That a public office is the property of him to whom the execution of its duties is entrusted, 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.Rep. 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 Sutton v. Adams, 180 Ga. 48, 69, 178 S.E. 365, 375, the right of the State veterinarian to enjoin the physical interference with the possession of his office was considered by this court, and in the opinion it was said: 'The office of state veterinarian is one with a salary attached, even if no provision has been made for its payment. While an officer has no vested right in the office held by him, and thus cannot complain of an abolishment of such office, or of his removal or suspension, according to law * * * it does not follow that he has absolutely no financial or property interest which may be protected by a court of equity as against one who otherwise and by private means seeks to interfere with his possession and conduct of such office during his incumbency therein. (Ekern v. McGovern, 154 Wis. 157, 142 N.W. 595, 46 L.R.A.,N.S., 796, supra; Stiles v. Municipal Council of City of Lowell, 233 Mass. 174, 123 N.E. 615, 616, 4 A.L.R. 1365; 10 R.C.L. 339; 22 R.C.L. 378, § 10; 21 C.J. 154; 46 C.J. 932, § 28). As illustrating such interest, see Mattox v. Board, 148 Ga. 577, 97 S.E. 532, 5 A.L.R. 568; Tucker v. Shoemaker, 149 Ga. 250, 99 S.E. 865); City of Macon v. Bunch, 156 Ga. 27, 118 S.E. 769. In the Massachusetts case of Stiles v. Municipal Council of City of Lowell, supra, it was said by Chief Justice Rugg, that 'the incumbent of an office carrying emolument has rights protected from assault by third persons, although as against the state itself his relation may be of a different nature.'' We do not dispute the correctness of the rule that where the tenure of an office is not prescribed by law, the power to remove is an incident to the power to appoint. Wright v. Gamble, 136 Ga. 376, 71 S.E. 795, 35 L.R.A.,N.S., 866, Ann.Cas.1912C, 372. We do not take issue with the statement that as to an office created by the legislature that body may lawfully delegate to other officers the power to remove. 12 C.J. 1019, and cit. This court is committed to the proposition that in a case where the act does not provide for removal 'for definite and specified causes,' the removal may be had without a notice and a hearing upon the charges preferred, and without an opportunity to defend. Gray v. McLendon, and Felton v. Huiet, supra. But none of the foregoing are decisive of the problem presented by the record in this case. Indeed, this court in Gray v. McLendon said [134 Ga. 224, 67 S.E. 870]: 'The question as to whether or not 'a public officer who has under the law a fixed term of office, and who is removable only for definite and specified causes, cannot be removed without notice and a hearing on the charge or charges preferred against him, with an opportunity to make defense,' need not be considered.'

The first headnote in Coleman v. Glenn, 103 Ga. 458, 30 S.E. 297, 68 Am.St.Rep. 108, reads as follows: 'A statute (Acts 1887, p. 72; Pol.Code, § 1356) 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 provision 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 a 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...