Cason v. Harn

• Decision Date: 15 December 1925
• Docket Number: 4788,4789.
• Citation: 131 S.E. 88,161 Ga. 366
• Parties: CASON v. HARN. HARN v. CASON.
• Court: Georgia Supreme Court

131 S.E. 88

161 Ga. 366

CASON v. HARN.

HARN v. CASON.

Nos. 4788, 4789.

Supreme Court of Georgia

December 15, 1925

Syllabus by the Court.

A "vacancy," as that term is used in connection with official positions, implies the absence of any holder of the office. An office may be said to be vacant when it is not held by one legally entitled to discharge the functions and duties of the particular officer invested therewith. There may be three classes of vacancies: (1) A vacancy caused by a failure to elect or to hold an election; (2) a vacancy caused by the failure of one appointed or elected to an office to qualify as provided by law; (3) a vacancy caused by either death, resignation, or removal after the certain officer has been elected or appointed and may also have qualified.

That all parts of a legislative enactment shall, if possible, be harmonized and so construed as to reconcile apparent conflicts as to give effect to the apparent intention of the lawmakers is a cardinal rule in the construction of statutes.

A provision in an act creating a board of county commissioners who are named in the act, that, "in the event that any member named in this act, or by the grand jury, fails to qualify, the board of commissioners of roads and revenues shall select his successor," is not in conflict with a subsequent section providing "that, in case of a vacancy by death or resignation or otherwise, the remaining members shall immediately appoint a successor, who shall qualify by taking the oath and giving bond as hereinbefore provided, and shall hold his office until the next session of a regular grand jury which shall name the successor of the person causing the vacancy." Construing together the two sections alleged to be inconsistent, it is plain that each provision was designed to meet a different emergency or contingency, both of which were within the purview and intention of the General Assembly. The provision first quoted relates to a vacancy caused by a failure to qualify. The second provision quoted refers to all cases where a vacancy may arise after qualification of the officer named.

Error from Superior Court, Bryan County; W. W. Sheppard, Judge.

Petition for quo warranto by A. M. Cason against S.D. Harn. Judgment for the respondent, petitioner brings error, and respondent assigns cross-error. Affirmed on main bill of exceptions cross-bill dismissed.

Bouhan & Atkinson, of Savannah, and C. L. Purvis, of Pembroke, for plaintiff in error.

Hitch Denmark & Lovett, of Savannah, for defendant in error.

RUSSELL C.J.

This writ of error challenges the correctness of the ruling of the judge of the superior court of Bryan county upon a petition of quo warranto brought to test the right to the position of commissioner of roads and revenues for the third district of Bryan county. In 1920 the General Assembly passed an act to create a board of county commissioners of roads and revenues. Acts 1920, p. 454 et seq. In pursuance of the act of 1920 a board of commissioners was created, and operated as such until August 1, 1924, when the act of 1920 was repealed. Acts 1924, p. 283. On the same day, to wit, August 1, 1924, an act to create a new board of commissioners for the county of Bryan was approved, creating a new board of commissioners for the county of Bryan, consisting of five members who were named in the act creating the board of commissioners. Acts 1924, p. 284. Quite frequently the General Assembly has passed acts abolishing local boards or local courts as a means of effecting a mere change in the personnel of the particular board, or as a means of displacing certain officers of court. However, in the present instance it appears from a consideration of the act of 1924, supra, creating a board of commissioners of roads and revenues for the county of Bryan, that the act sought to accomplish more than a mere change in the membership of the body by ousting the former commissioners and selecting the five commissioners named in the act. Under the provisions of the act of 1920, supra, the board consisted of only two members, who are named in the first section of that act, to hold office "until the first day of January, 1923, and until their successors are duly selected and qualified." Under section 2 of the act of 1924, supra, the county of Bryan was divided into four road districts, each definitely described in this section, and each entitled to one commissioner resident therein, while the chairman was named from the county at large, with a term of office extending until January 1, 1929. In section 3 of the act of 1924, supra, it is provided:

"That at each succeeding May term of the superior court of Bryan county, the grand jury shall select, and publish in its general presentments the names of three candidates, who shall have been bona fide residents of Bryan county for a period of two years and legally qualified to hold office, and, at the November term of the superior court following and in the same year, the grand jury shall select one of the candidates for a period of four years, and until his successor qualifies; and every four years the May term grand jury shall select three candidates from the county at large, in addition to the usual three; and from these three candidates named the succeeding November grand jury shall select a chairman for a term of four years, or until his successor qualifies; in the event that any member named in this act, or by the grand jury, fails to qualify, the board of commissioners of roads and revenues shall select his successor."

In pursuance of this section the respondent, now defendant in error, claimed to be commissioner from the third road district in place of W. D. Morgan, who was named in the act from the 1137th district, G. M. (and who failed to qualify) and claimed to be entitled to discharge the duties of that office. Cason's claim rests upon an alleged selection by the grand jury at the November term, 1924, of the superior court of Bryan county. The respondent Harn asserts title to the office in question upon the ground that the vacancy caused by the failure of W. D. Morgan to qualify was filled by the board of commissioners themselves in electing him as commissioner from the third...