Felton v. Huiet

• Decision Date: 22 December 1933
• Docket Number: 9890.
• Citation: 173 S.E. 660,178 Ga. 311
• Parties: FELTON v. HUIET.
• Court: Georgia Supreme Court

173 S.E. 660

178 Ga. 311

FELTON v. HUIET.

No. 9890.

Supreme Court of Georgia

December 22, 1933

Rehearing Denied March 1, 1934.

Error from Superior Court, Fulton County; E. D. Thomas, Judge.

Petition by J. W. Felton against B. T. Huiet. To review a judgment sustaining defendant's demurrer and dismissing the petition, petitioner brings error.

Affirmed.

Felton & Felton and A. A. Marshall, all of Montezuma, for plaintiff in error.

M. J Yeomans, Atty. Gen., B. D. Murphy, Jno. T. Goree, and D. M Parker, Asst. Attys. Gen., and Ellis Barrett, E. E. Andrews Frank Harwell, Elbert P. Tuttle, Marion Williamson, and Madison Richardson, all of Atlanta, for defendant in error.

Syllabus OPINION.

BECK Presiding Justice.

1. By the Act of October 14, 1879 (Ga. L. 1878-79, p. 125, Civil Code of 1910, § 2618), the Legislature created the office of railroad commissioner, and provided that "any commissioner may be suspended from office by order of the Governor, who shall report the fact of such suspension, and the reason therefor, to the next General Assembly; and if a majority of each branch of the General Assembly declare that said commissioner shall be removed from office, his term of office shall expire." The provisions of this law as to suspension by the Governor as quoted above were not repealed by the act of August 21, 1922 (Ga. L. 1922, pp. 143, 145), entitled, "An Act to change the name of the Railroad Commission of Georgia, to the Georgia Public Service Commission, to revise, enlarge and define the duties and powers of, what shall, after the passage of this Act be known as the Georgia Public Service Commission; to provide a fee to be collected from all public utilities companies for the maintenance of said Commission; to give said Commission authority to employ such experts, clerks, statisticians, engineers, secretary and such other help, as in the opinion of the Commission may be necessary and to fix the compensation of each; to provide rules of procedure, and for other purposes," and repealing conflicting laws. The act of 1922 did not refer to the former law, and nothing contained therein is in conflict with the quoted provision as to suspension.

2. Nor did the act of 1906 (Ga. L. 1906, p. 100), making the office of railroad commissioner elective by the people, repeal the provisions of the act of 1879.

3. The provision as to suspension, as contained in the act of 1879, does not violate the clause of the Constitution of this state, providing that "protection to person and property is the paramount duty of government, and shall be impartial and complete" (Const. art. 1, § 1, par. 2); nor does it violate the further constitutional provision that "no person shall be deprived of life, liberty, or property, except by due process of law." (Const. art. 1, § 1, par. 3.)

4. A public office is a public trust or agency, and is not the property of the incumbent thereof, and, when he is suspended from such office, he is not deprived of any property. The office of public service commissioner is a statutory office and the power of the Legislature is absolute with respect to all offices that it creates, where no constitutional restriction is placed upon its power with reference to such offices. So far as these questions are concerned, the petitioner accepted the office subject to the provisions of the legislative act, and is bound by the terms thereof. Accordingly, the fact that the petitioner may conceive that...