Error
from Superior Court, Chatham County; John Rourke, Jr., Judge.
Proceeding
by Jacob Gazan against Bernice B. Heery in the nature of quo
warranto, praying that the court inquire into the right of
respondent to the office of Chief Justice of the municipal
court of Savannah. To review an adverse judgment, the relator
brings error.
Affirmed.
Jacob
Gazan as a citizen and taxpayer of the city of Savannah
Chatham county, Ga., filed an information in the nature of a
quo warranto against Bernice B. Heery, praying that the court
inquire into the right of the respondent to the office of
chief judge of the municipal court of Savannah. The petition
was based on the statement that the respondent was ineligible
to hold the office in question, because of the following
provision in section 6 of the Act of the General Assembly
approved August 13, 1915 (Ga.Laws 1915, pp. 124, 127)
creating the municipal court of Savannah: "That there
shall be a chief judge and two associate judges of said
court, and each of the three judges of said court shall have
all the power, authority and jurisdiction that a justice of
the peace now has under the laws of Georgia. Any attorney at
law who is a resident of Chatham County, and who has
practiced law continuously for one or more years, shall be
eligible to hold office as associate judge of said court, but
in addition to the foregoing qualifications, the chief judge
of said court must have practiced law for five years or more.
No such judge or chief judge shall hold any other public
office of honor, trust or profit or practice as an attorney
or counsellor at law, but each judge of said court shall
devote his whole time and capacity, so far as public
interests demand, to the duties of his particular office as
prescribed by law." Petitioner alleged that by section 5
of an act approved March 9, 1933 (Ga.Laws 1933, p. 360)
"in the event of the * * * resignation of the Chief
Judge of the Municipal Court of Savannah * * * his successor
for the unexpired term shall be elected and appointed by the
County Commissioners and ex-officio Judges of Chatham
County"; that by section 8 of the act of 1915, supra
(Laws 1915, p. 128), the Chief Judge of the municipal court
of Savannah was ex-officio judge of the city court of
Savannah; that in conformity to the act of 1933, supra, the
respondent was appointed to succeed Alexander R. McDonnell
who resigned as Chief Judge of said municipal court, and
respondent qualified by taking the oath of such office and is
now in possession of said office; that said appointment of
Heery is illegal and void, in that under section 6 of the act
of 1915 such appointee must be an attorney at law and have
practiced law continuously for five years or more; that at
the date of said appointment said respondent was ineligible
to hold said office, in that he was admitted to the bar of
Georgia on June 2, 1920, and in the month of January, 1923
he qualified as an associate judge of the municipal court of
Savannah, and thereafter by successive elections has
continuously occupied said office up to July 26, 1933, when
he was appointed Chief Judge of said municipal court of
Savannah, and ex officio judge of the city court; that prior
to his election and appointment as Chief Judge of said
municipal court he had practiced law for less than five
years, to wit, from June 2, 1920, to some date in January,
1923, when he qualified as associate judge of said municipal
court of Savannah; that during the time while respondent was
such associate judge of said municipal court, not only was he
not "practicing law," but also, by the terms of
section 6 of the said act of 1915, it was expressly
prohibited to him to "practice as an attorney and
counsellor at law."
In the
answer of the respondent is set out at considerable length
and detail the history of the creation of the municipal court
of Savannah and the acts amendatory thereof, and certain
customs and usages of the judges of said court in respect of
advising poor litigants, respondent contending that the
twelve years' service as an associate judge of said
municipal court qualified him within the terms of the act for
the position of Chief Judge of said court. The acts of the
General Assembly amendatory of the original act of 1915,
which created the municipal court of Savannah, are found in
Ga.Laws 1916, p. 292; Ga.Laws 1918, p. 356; Ga.Laws 1919, p.
538; Ga.Laws 1927, p. 455; Ga.Laws 1929, p. 470; Ga.Laws
1933, p. 357. The relator made a motion to strike the
allegation of the answer just stated, on the grounds that it
sets up no issuable fact, is purely argumentative and not
responsive to any allegations of fact in the information,
states but conclusions of the pleader, and is irrelevant as
matters of fact. The court overruled this motion, and the
relator excepted pendente lite. No evidence was introduced,
but on the pleadings the court rendered the following opinion
and judgment:
"The
matter before the court is an information in the nature of
a quo warranto brought by the relator, Jacob Gazan, in his
own behalf, seeking to oust the respondent, Bernice B.
Heery, from the office of chief judge of the municipal
court of Savannah and ex-officio judge of the city court of
Savannah, for the reason that he has not practiced law
continuously for five years or more prior to his
appointment as such chief judge. Said information shows
that the respondent was elected to the office of associate
judge of the municipal court of Savannah on November 7,
1922, and qualified as such judge early in the month of
January, 1923, and performed the duties and functions
thereof up to July 26, 1933, when he was appointed for an
unexpired term by the Chatham County commissioners and
ex-officio judges of Chatham County to the office of chief
judge of the said municipal court of Savannah and
ex-officio judge of the city court of Savannah, thus
holding the office of associate judge for over twelve and
one half years. The respondent filed an answer to the
information, setting out certain combined matters of law
and fact which is part of the record.
"In
determining the questions, the court will take judicial
cognizance of certain matters hereinafter set out in this
opinion. By an act of the General Assembly of Georgia,
approved August 13, 1915, the municipal court was
established under the authority of a constitutional
amendment, giving to the municipal court the same
jurisdiction as to suits up to one hundred dollars and the
same jurisdiction as to committing magistrates as had been
vested in the justices of the peace; so that in fact the
municipal court was the successor of the justice of the
peace courts. There was no requirement that justices of the
peace should be lawyers, and it was generally known that
the justices of the peace anywhere were seldom lawyers. The
change in the judicial system from the justices of the
peace and of notaries public ex-officio justices of the
peace was due to the fact that evils and abuses had crept
into the then existing judicial system to which there was
probably no parallel in this State. The General Assembly,
having in mind the elimination of the justices of the peace
from becoming judges of the municipal court, and/or having
the newly created municipal court occupied by lawyers or
persons experienced in the law and of good character, and
desiring to afford a remedy for such evils, required:
'That there shall be a chief judge and two associate
judges of said court, and each of the three judges of said
court shall have all the powers, authority, and
jurisdiction that a justice of the peace now has under the
law of Georgia. Any attorney at law who is a resident of
Chatham County, and who has practiced law continuously for
one or more years, shall be eligible to hold office as
associate judge of the said court; but in addition to the
foregoing qualifications, the chief judge of said court
must have practiced law for five years or more. No such
judge or chief judge shall hold any other public office of
honor, trust, or profit, or practice as an attorney or
counsellor at law, but each judge of said court shall
devote his whole time and capacity, so far as public
interests demand, to the duties of his particular office as
prescribed by law.' * * * Keeping in mind the spirit of
the act, the old law, the evil and the remedy, it would
appear that the legislative intent was to have the chief
judge and associate judges members of the legal profession,
and the jduges of the municipal court not to be filled as
above stated by any of the then justices of the peace and
of notaries public ex-officio justices of the peace, and as
far as the chief judge was concerned to have had more
experience in the law than the associate judges.
"It
will be noted that nowhere in the subsequent amendatory
acts of the General Assembly changing the method of filling
the vacancy of the chief judge or associate judges, did it
prescribe the eligibility or the qualifications of the
chief judge or of the associate judges as to the practice
of law. The municipal court of Savannah is a distinctive
court, in that it is held out and looked upon as a poor
man's tribunal, and the judges of said court, including
the chief judge, are frequently called upon, besides their
regular judicial duties, to give free counsel and advice,
as would an attorney at law, to parties who on account of
their poverty are unable to secure and compensate a
practicing attorney. Construing the statutes in
establishing the municipal court, the following cases are
applicable: 'The presumption against absurdity in the
provision of a legislative enactment is probably a more
powerful guide to its construction than even the
presumption
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