Bennett v. Pub. Serv. Comm'n Of Ga., (No. 4774.)

• Decision Date: 21 March 1925
• Docket Number: (No. 4774.)
• Citation: 127 S.E. 612,160 Ga. 189
• Parties: BENNETT. v. PUBLIC SERVICE COMMISSION OF GEORGIA et al.
• Court: Georgia Supreme Court

160 Ga. 189

127 S.E. 612

BENNETT.

v.PUBLIC SERVICE COMMISSION OF GEORGIA et al.

(No. 4774.)

Supreme Court of Georgia.

March 21, 1925.

Rehearing Denied April 24, 1925.

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

Hines, J., dissenting in part.

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Petition for mandamus by O. R. Bennett against the Public Service Commission of Georgia and others. Judgment for defendants, and plaintiff brings error. Affirmed.

John W. Bennett, of Waycross, R. B. Blackburn and Walter R. Brown, both of Atlanta, and J. Herman Milner, of Eastman, for plaintiff in error.

W. E. Watkins, of Jackson, and Little, Powell, Smith & Goldstein, of Atlanta, for defendants in error.

HINES, J. At the general state election held on November 4, 1924, O. R. Bennett was elected a member of the Public Service Commission of this state. Thereupon the Governor of this state issued to him a commission in writing, commissioning him as a member of said Commission for a term of six years commencing January 1, 1925, and expiring January 1, 1931. Bennett took the oath of office and qualified as a member of said Commission. Upon the morning of January 1, 1925, Bennett presented himself, with his commission, at the office of the Commission to enter upon the discharge of his duties as a member of that body. He occupied a room and desk in the office of the Commission at the State Capitol, "in the exercise of his functions and in the performance of the duties devolving upon him as a member of said Commission up to January 7, 1925, " when the chairman of said Commission undertook to convene said Commission in special session. At that time Bennett was temporarily out of the city and was without official notice of any intention to call said Commission in special session, and without any official information as to what was contemplated to be done at said meeting. Upon his return to Atlanta, Bennett reported to the office of said Commission for duty, and was informed that during his absence the Commission had, at a special session, by a majority of its members, decided not to recognize him as a legally constituted member of said Commission, and he was and has been denied the right to participate in any of the deliberations of the Commission.

Thereupon Bennett filed his petition against the Public Service Commission, Paul B. Trammell as chairman of said Commission, and Paul B. Trammell, Walter R. McDonald, James D. Price, and James A. Perry, as members of said Commission, in which he alleged the facts hereinbefore stated. He further alleged that the act of the chairman in calling said Commission together in special session without official notification to him was contrary to law, exceeded the powers of said chairman and said Commission, and was null and void. He further alleged that said act of said Trammell, as a member and as chairman, and the act of the other members of the Commission who participated in said meeting, was without warrant or authority of law, and that said chairman and said members are now acting contrary to law and without authority of law in refusing and denying him the right to sit as a member in the sessions of said Commission, in refusing to give him any voice in the acts and doings of said Commission, and in wrongfully prohibiting him from performing any of the duties devolving upon him as a member of said Commission. He further alleged that all the acts of said chairman of said Commission and the several members thereof as heretofore stated are trespasses against his rights, and that such conduct of the chairman and members exceeds their powers and is null and void. The petition further states that, under the law as it is now in force, the Public Service Commission is required to consist of five members; thatpetitioner is entitled to be recognized as one of its members, having received his commission and having been duly elected and qualified; and that he is now being wrongfully and without authority denied the right to discharge his official duties; and that such unlawful denial makes it impossible, as a matter of law, for the Commission to legally function. He prayed that the court issue a mandamus requiring the Commission and its members to admit him to sit as a member of said Commission and to enter upon the discharge of the duties, and to allow him the privileges incident to the office to which he had been duly elected, qualified, and commissioned. Attached to the petition is a copy of the commission issued by the Governor to the petitioner on November 28, 1924, and the oath of office taken by him on said date.

To the petition the defendants demurred on the grounds: (1) That the petition set out no cause of action; (2) that it affirmatively appears from the facts set out in the petition, and from matters of which the court will take judicial cognizance, that the term of office of the petitioner does not commence until December, 1925; (3) that the act of 1918 (Ga. Laws 1918, p. 154), as amended by the act of 1921 (Ga. Laws 1921, p. 232), and particularly the third section of said act of 1918 as thus amended, whereby it is purported to change the term of office of certain officers, is unconstitutional and void, for the reasons that said third section of said act is in conflict with article 3, § 7, par. 8 of the Constitution of this state, wherein it is provided that "no law or ordinance shall pass which refers to more than one subject-matter, or contains matter different from what is expressed in the title thereof"; and (4) that the proper proceeding to try petitioner's title to this office is by an information in the nature of a quo warranto, and not by mandamus.

The trial judge sustained this demurrer and dismissed the petition, but held that mandamus was a proper remedy for the assertion of the rights claimed by the petitioner. To the judgment dismissing the petition, the petitioner excepted.

1. We cannot agree to the contention of counsel for petitioner that, under the facts set out in the petition, petitioner was entitled to take his seat as a duly elected member of the Public Service Commission of this state on January 1, 1925. This contention is based upon the fact that the Governor commissioned petitioner for the term of six years, commencing January 1, 1925, and that this commission is final and conclusive, upon demurrer, as to the time when his term of office begins. The commission of the Governor has no such force and effect. As was said in State v. Towns, 8 Ga. 360:

"We cannot assent to the proposition, that the mere ministerial act of the Governor, is suing a commission to an individual, shall be conclusive evidence of his right and title to the office which he claims under it, and that the courts have no power or authority to look behind the commission, and adjudicate the rights of the parties claiming the office, under the Constitution and laws of the state."

This principle has been followed many times by this court, as will appear from the following cases: Hardin v. Colquitt, 63 Ga. 588; Corbitt v. McDaniel, 77 Ga. 544, 2 S. E. 692; Ginn v. Linn, 83 Ga. 180, 9 S. E. 784; Hathcock v. McGouirk, 119 Ga. 973, 47 S. E. 563; McCants v. Layfield, 149 Ga. 231, 99 S. E. 877. When the commencement of a term of office is fixed by statute and the commission issued by the Governor fixes a different date therefor, the statute and not the commission determines the commencement of the term. McCleskey v. Zimmer, 144 Ga. 834, 88 S. E. 188.

A demurrer admits only such facts as are well pleaded. Alexander v. Sutlive, 3 Ga. 27; Carter v. Anderson, 4 Ga. 516; Griffin v. Augusta, etc., Railroad, 72 Ga. 423; Graham v. Marks, 98 Ga. 67, 25 S. E. 931; Sasser v. Adkins, 108 Ga. 228, 231, 33 S. E. 881; Williams v. Stewart, 115 Ga. 864, 42 S. E. 256. It is well settled that a demurrer does not admit opinions or conclusions of the pleader. Southern R. Co. v. Covenia, 100 Ga. 46, 29 S. E. 219, 40 L. R. A. 253, 62 Am. St. Rep. 312. Nor does a demurrer admit conclusions of law. Graham v. Marks; Williams v. Stewart, supra. Nor does a demurrer admit conclusions of fact where the facts are not averred upon which such conclusions are supposed to rest. Graham v. Marks, supra. Where a petition alleges facts as true which are contradicted by legislative acts and records of which the court is bound to take judicial notice, such facts cannot be held to be true, and they will not prevent the sustaining of a demurrer to the petition. Griffin v. Augusta, etc., Railroad, supra.

The commencement of the term of an office is generally a question of law to be determined by the court; and when the term fixed by law is different from that alleged in the petition, demurrer is the proper remedy to determine the question. When the right of the plaintiff to the relief sought depends upon the time when his term of office begins, the court will dismiss his petition on demurrer when the law fixes a date for the commencement of the term which is different from that alleged in his petition.

2. The question in this case is: When does the term of office of the petitioner begin, on January 1, 1925, or on December 1, 1925? By section 2616 of the Civil Code of 1910, the petitioner was elected for a full term of six years from December 1, 1925, unless this section has been changed by subsequent legislation. On August 19, 1918, the Legislature passed "An act to prescribe the manner in which the returns ofelections for secretary of state, treasurer, comptroller general, and all other State House officers, who are to be commissioned by the Governor, shall be made, and for other purposes." By the first section of this act it is provided:

"That the returns for every election for secretary of state, treasurer, and comptroller general shall be sealed up by the managers separately from the other returns and directed to the President of the Senate and Speaker of the House of Representatives, in the same manner and at the...