Beauchamp v. Smith
| Decision Date | 23 September 1982 |
| Docket Number | No. 38931,38931 |
| Citation | 295 S.E.2d 97,250 Ga. 16 |
| Parties | BEAUCHAMP v. SMITH. |
| Court | Georgia Supreme Court |
Denmark Groover, Jr., Groover & Childs, Macon, Byrd Garland, Garland & Milam, Jackson, for Ricky Beauchamp, Comr.
E. Byron Smith, Dist. Atty., Barnesville, pro se.
The Butts County grand jury, in its investigation of the office of the appellant Tax Commissioner of Butts County, conducted a hearing. The appellant attended the hearing in person, waiving his right to counsel, and made a statement at the close of the evidence. The presentments of the grand jury recommended that the appellee District Attorney of the Flint Judicial Circuit file a petition for removal of the appellant from office for malpractice in office, which the appellee did. The trial judge denied the commissioner's motion to dismiss the petition, and we granted his application for interlocutory appeal.
1. 1976 Const., Art. IX, Sec. I, Par. VIII (Code Ann. § 2-5808) provides, inter alia, that county officers "shall be removed upon conviction for malpractice in office ..." The appellant concedes that the petition is based on this provision of the Constitution, but contends that the provision is deficient for vagueness and is not self-executing, because it (1) does not specify who shall be empowered to remove a county officer for malpractice in office; (2) does not provide for any mandatory notice of the charges nor opportunity to be heard; (3) does not provide for any procedure; and (4) requires a "conviction" before removal is authorized.
It has been held that "[u]nless the language indicates the necessity of enabling legislation, constitutional provisions for removal from office, impeachment or declaration of vacancy are self-executing." 16 C.J.S. 161, Constitutional Law, § 54(c). This court has held that county tax commissioners are "county officers" under this provision. Lowndes County v. Dasher, 229 Ga. 289(3), 191 S.E.2d 82 (1972); and see Lucas v. Woodward, 240 Ga. 770(1), 243 S.E.2d 28 (1978). We have upheld the procedure of a petition for removal brought in superior court by the solicitor general (now district attorney). Cole v. Holland, 219 Ga. 227, 132 S.E.2d 657 (1963). As to notice, opportunity to be heard, and procedure, these are matters which are provided elsewhere by the Constitution and statutes. The appellant does not contend that he has not had notice or opportunity to be heard, or that the procedure used was unlawful. As to the requirement of a "conviction," we have held that this refers to a conviction in the proceeding for removal; hence, no separate criminal proceeding is required. Cole v. Holland, 219 Ga. 227, 132 S.E.2d 657, supra, (1).
2. The appellant argues that Cole, supra, is not applicable to the facts in the case sub judice, because, at that time, no statute existed which would authorize removal from office for malpractice in office, whereas now there are several such statutes. 1
We held in Cole, supra, at p. 230, 132 S.E.2d 657: The above indicates that the court intended that an equitable proceeding would lie to implement this provision of the Constitution even in the absence of a statutory framework. The fact that there now exist a number of specific statutes--one or more of which may cover the present situation--does not demand the conclusion that these statutes are in exclusion of the general Constitutional provision. The present petition does not allege the specific legal basis upon which it was brought. Even if it had, the above-quoted language from Cole indicates that that would not have been controlling, and that we can apply the applicable law to the facts.
3. Finally, the appellant argues that, even if the Constitutional provision in question is sufficiently self-executing and otherwise definite enough to be authority for the proceeding, the phrase ...
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Dekalb Cnty. Sch. Dist. v. Ga. State Bd. of Educ.
...said, meant “evil, bad or wrong practice in office”—and have held that it was not “too vague to be enforceable.” Beauchamp v. Smith, 250 Ga. 16, 17–18(3), 295 S.E.2d 97 (1982). At least on its face, the standard in this case is adequate. To the extent that Walker seeks to complain about the......
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Hensley, In re, 74978
...report of the committee the grand jury could have issued a presentment of malpractice in office. See OCGA § 45-11-4; Beauchamp v. Smith, 250 Ga. 16, 295 S.E.2d 97 (1982). However, the grand jury's adoption of the report of the citizen committee was not set forth as a presentment. In fact, i......
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