Gazan v. Heery

• Decision Date: 03 July 1936
• Docket Number: No. I1238.,I1238.
• Citation: 183 Ga. 30,187 S.E. 371
• Parties: GAZAN. v. HEERY.
• Court: Georgia Supreme Court

183 Ga. 30

187 S.E. 371

GAZAN.

v.HEERY.

No. I1238.

Supreme Court of Georgia.

July 3, 1936.

Syllabus by the Court.

1. The cardinal rule in the construction of legislative enactments is to ascertain the true intention of the General Assembly in the passage of the law. As a general rule, the use of plain and unequivocal language in a legislative enactment obviates any necessity for judicial construction, and indeed forbids an interpretation of the words employed by the General Assembly.

2. An exception to the general rule just stated is presented by the use of words the meaning of which in general acceptation is apparently obvious, and yet the purpose of the Legislature would be defeated were the words employed construed literally. Courts may construe the language employed in the act in connection with the context, and ascertain the legislative intent as derived from the old law, the evil, and the remedy, and will not defeat the intention and purpose of the General Assembly by giving effect to words which would render the purpose of the General Assembly in the passage of the enactment futile, unenforceable, or ineffectual.

3. In the construction of a statute a court may decline to give a legislative act such construction as will attribute to the General Assembly an intention to pass an act which is not reasonable, or as will defeat the purpose of the proposed legislation. In the exercise of this power a court may avoid a portion of the enactment and preserve the remainder.

Words limiting the right of a person to hold office are to be given a liberal construction in favor of those seeking to hold office, in order that the public may have the benefit of a choice from all of those who are in fact and in law qualified.

5. The words, "practice of law, " may have an entirely different meaning in a statute designed to prevent the practice of law by one who is not qualified to do so, from that which the same expression should have in determining qualification to hold judicial office. Words may be given one meaning in one statute and an entirely different meaning in a different statute, determinable by the character of the proposed legislation. While a judge of the municipal court may not be engaged in the practice of law in the ordinary sense, yet he is dealing with the law and acquiring by decision and disposition of cases in trials in his court a knowledge and experience in law which during the same period of time may more greatly enhance his qualifications than that of an active practitioner at the bar during the same period.

6. The court did not err in dismissing the information in the nature of a quo warranto.

ATKINSON and GILBERT, JJ., dissenting.

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 ex cepted 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 Ga-zan, 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 jus-tices of the peace from becoming judges of the municipal court, and/or having the newly created municipal court occupied by lawyers or persons...