Bonner v. The State Of Ga.

• Decision Date: 30 November 1849
• Docket Number: No. 80.,80.
• Citation: 7 Ga. 473
• Parties: Richard W. Bonner, plaintiff in error. vs. The State of Georgia, ex relatione, Columbus A. Pitts, defendant in error.
• Court: Georgia Supreme Court

7 Ga. 473

Richard W. Bonner, plaintiff in error. vs. The State of Georgia, ex relatione, Columbus A. Pitts, defendant in error.

No. 80.

Supreme Court of the State of Georgia

NOVEMBER TERM, 1849.

Mandamus. Decided by Judge Merriwether, Jones Superior Court, April Term, 1849.

On the first day of January, 1849, at an election for Justices of the Inferior Court of Jones county, Joseph Day, James Gray, William Moreland, Sterling W. Smith and Thomas S. Humphries, were elected, and their election was duly certified to His Excellency the Governor, who returned their commission, together with a "dedimus potestatem, " &c. to the acting Justices of the Inferior Court of said county.

On the second Monday in January, at the regular term of the Court sitting for Ordinary purposes, the commission and "dedimus"''having boon received, before qualifying the new Court the old Court proceeded to elect a Clerk of the Court of Ordinary for the ensuing two years, and Columbus A. Pitts, the acting Clerk, was duly elected. Upon the afternoon of the same day, the newly elected Justices, after being qualified and commissioned, proceeded to elect a Clerk, which resulted in the election of Richard W. Bonner. Certificates of the election were sent by each Court to the Governor of the State, who sent a commission to Bonner, the Clerk elected by the new Court, to whom Pitts delivered up the books and papers of the office, and who proceeded to discharge its duties.

Subsequently, on 31st March, 1840, Columbus A. Pitts prayed for and obtained a mandamus nisi, directed to Richard W. Bonner, the acting Clerk, alleging the foregoing facts; and fartherthat the election of Bonner was not by the Justices, as a Court sitting for Ordinary purposes, the same having adjourned, and there being neither Clerk or minutes of the Court present, and that his election was void; and requiring that Bonner show cause, at the regular term of the Court, why he should not deliver up the books, &c. to the relator, Pitts, and permit him to be restored to the full enjoyment of the office of Clerk of the Court of Ordinary.

To this, the respondent, Bonner, made return, and for cause why the mandamus should not be made absolute, submitted—

1st. That the writ of mandamus should have been directed to His Excellency, Governor Towns, and not to the respondent, be cause it is not within his power to restore the office to him.

2d. That, holding the office under color of right, at least, mandamus was not the proper remedy, but an information in the nature of a writ of "quo warranto."

3d. That it was the exclusive province of the Governor of the State, to decide between the claims of respondent and relator, and the Superior Court had no jurisdiction of the question.

4th. That the election of relator, was by a Court whose term of office had expired.

5th. Because the election of Pitts was made in fraud of the law and of the rights of the citizens of Jones county, because the Justices had, at the time, the commissions of the persons elected as their successors, with a "dedimus" from the Governor, to qualify them; that their successors appeared and demanded to bo qualified, which was refused by the Court then sitting.

6th. That the respondent was duly elected and commissioned as Clerk of the Court of Ordinary, and entitled to discharge its duties.

7th. That relator bad voluntarily delivered up the books, &c. to respondent, and bad thereby abandoned his claim to said office, if any he had.

The Court below granted a mandamus absolute; and from tin's decision Bonner appealed to this Court.

The questions here argued and decided, were—

1st. Whether the election of Pitts was valid and binding.

2d. Whether a mandamus was a proper remedy.

Cone, for plaintiff in error. 1st. The record discloses the fact, that the plantiff in error is in the possession of the office of Clerk, by virtue of the commission from the Governor of the State; he is therefore exercising the duties 6f the office, under color of right.

The relator claims title to the office. In such case, the title of the plaintiff can be inquired into only by a writ of quo warranto. 6 Iredell, 155. 5 Stew. & Port, 40 1 Ala. E. 688. 3 Johns. Ca. 79. 2 Johns. R. 100. 5 Hill, 616. 3 Dallas, 490. 4 Cowen, 100 in notes. 3 Black. C. 262. Angell & Ames on Corp. 557. Petersdorf, 349, 352.

2d. The proper office of mandamus is to enforce the performance of some official duty; therefore, a, writ of mandamus should not be granted, where the prayer of the petition is, that it may be issued against one having no power to execute it. State vs. Dunn, Miner, 46. 1 Cowen, 502. 5 Pick. 329. 1 Minor, 47. 3 Smede & Marsh. 713. 1 Iredell, 22. '4 Humph. 437. 1 Iredell's Law, 416. 4 Serg. & Rawle, 448. Bacon's Abridg. title "Mandamus, " E. 5 Comyn's Dig. 44 3 Black. Com. 265.

3d. The writ of mandamus will not lie, where there is another remedy. 2 Term P.. 259. 1 Ala. B. 15. 3 Black. Com. 110. 1 Cranch, 67. 1 Cowen, 417. 7 East, 353. 2 Maule & Sel. 80. Dudley's Geo. Decis. 37. Minor, 56. 2 McCord, 170. 1 Wend. 318. 2 Grattan. 575. 2 Leigh. 165. 10 Miss. 117. 3 Johns. Ca. 79. 3 Smith, 369. 5 Comyn's Dig. 31. Cowp. 378.

4th. Writ of que warranto lies against an officer commissioned under the authority of the State. 1 McCord, 52. 2 Stewart, 231. 1 Miss. 115. 10 Mass. 290. 1 Cranch, 67. 1 Cond. E. 267.

5th. The acts and conduct of the old Justices, in refusing to qualify the Justices elect, as set forth in the bill of exceptions, was a violation of their duty and a fraud upon the rights of the people; and rendered their action, in relation to the election of Clerk, void. Prince's Dig. 180. 910. 179. Hotehkiss. 501, 507 to 510. Prince's Dig. 177. Hotehkiss, 688, 689.

6th. The surrender of the Office of Clerk and its records, and the giving entire control of the.same, by the relator to the plaintiff in error, bars the relator of any right or claim to the office. 1 Dev. & Bat. 61. Ib. 406. 42 Eng. Com. Law, 760. 2 Barn. & Ald. 339.

R. HardEMAN, for defendant in error, submitted— 1st. That the members of the Court, by whom relator was elected on the 2d Monday in January, 1849, were the Justices of the Inferior Court for the county of Jones, and as such, constituted the Court of Ordinary for four years from the time of their election, and until their successors were elected and qualified; and as such, Justices had the right to hold the Court of Ordinary for said county, on the 2d Monday in January, 1849, and to elect a Clerk. Prince\'s Dig. 180, 181.

2d. That the relator, Columbus A. Pitts, having been duly elected Clerk of the Court of Ordinary of Jones county, on the 2d Monday in January, 1847, and commissioned as such by the Governor; and not having been removed for malpractice in office, has the legal right to act as such Clerk, until a legal successor to him is elected; and that relator's re-election on the 2d Monday in January, 1849, was legal, and by the proper legal power, when sitting as a Court of Ordinary; and that the subsequent election of Bonner was illegal and void, having been made subsequent to relator's election, and by the Justices when sitting otherwise than a Court of Ordinary. 3d Article of the Constitution of Georgia, section 6, Prince's Digest, 910, 231, 239, 211. Acts of 1839, '41.

3d. That, where a party is improperly suspended or removed from an office that, concerns the public, or administration of justice, a mandamus lies to restore him. provided he has no other specific legal remedy. 4 Bacon, title Mandamus, 496, 500, 501, 502. 2 Selwyn's Nisi Prius, 817. Drew vs. The Justices of the Sweet Spring District, 3 Hen. & Munf. 1, 22, 23, 35, 36, 37, 38, 39, 46 and 47. Cowper, 370. 2 Bay. 105.

4th. A mandamus must be directed to him who is obliged to execute and obey it. Bacon, title Mandamus, 516. 2 Selwyn's Nisi Prius, 816, ' 827. It will not lie against the Chief EXecutive of a State.

5th. The writ of quo warranto or information in the nature thereof, would not be a sufficient remedy for relator, because the judgment of the Court in such case, is, that the franchise or office be seized for the benefit of the public, and that the intruder be ousted and fined, and that he pay the cost. It would not restore relator. 2 Selwyn's Nisi Prius, 873, 893. Schley's Digest, 347. 3 Hen. & Munf.'16, 17, 35. 6th. That relator could not bring quo warranto, at his own mere will and right, because such writ must be brought in the name of the Attorney General or Solicitor General. 2 Selwyn\'s Nisi Prius, 873, \'4. Blacks tone\'s Commentaries. 3 Hen. & Munf. 16, 37.

By the Court.— Warner, J., delivering the opinion.

Two questions were submitted on the argument of this cause, for the judgment of the Court:

1st. Whether the election of Pitts, as Clerk of the Court of Ordinary, by the old Justices of the Inferior Court of Jones county, as stated in the record, was a legal and valid election.

2d. Admitting that Pitts had been duly and legally elected by the old Court, was a mandamus the proper remedy to vacate the office of Clerk of the Court of Ordinary held by Bonner, under a commission from the Executive of the State, and who was exercising the duties of that office under such commission.

Was the election of Pitss by the old Justices, legal and valid in law? Had the old Court the legal power and authority to elect a Clerk of the Court of Ordinary, at the time and in the manner Pitts was elected?

By the Act of 16th February, 1799, jurisdiction is expressly given to the Courts of Ordinary in each county in this State, to appoint their own Clerks. Prince, 231.

By the Act of 1811, the Justices of the Inferior Court in the several counties of this State were required, at the usual places of holding their Courts, on the first Monday in January in the year 1813, and on the first Monday in January in every second year thereafter, to proceed by ballot to the choice of Clerks of the Courts of Ordinary, who shall hold their office for and during the term of two years,...