Gray,v,. Mclendon.

• Decision Date: 18 March 1910
• Parties: GRAY v . McLENDON.
• Court: Georgia Supreme Court

67 S.E. 859

134 Ga. 224

GRAYv. McLENDON.

Supreme Court of Georgia.

March 18, 1910.

(Syllabus by the Court.)

1. States (§ 52^*)—Railroad Commissioners —Removal from Office—Statutory Provisions.

The act of the General Assembly approved Oct. 14, 1879 {Acts 1878-79, p. 125), providingfor the appointment of railroad commissioners, prescribing their duties, etc., had in it the following provisions: "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. * * * In case any commissioner becomes disqualified in any way, he shall at once remove the disqualification or resign, and, on failure so to do, he must be suspended from office by the Governor, and dealt with as hereinafter provided. In any case of suspension the Governor may fill the vacancy until the suspended commissioner is restored or removed." Held:

(a) The provisions above quoted were not repealed by the act approved Aug. 21, 1906 (Acts 1906, p. 100), providing for the election of railroad commissioners by the people instead of being appointed by the Governor.

(b) Nor were these provisions in the act of 1879 repealed by the act approved Aug. 23, 1907 (Acts 1907, p. 72). It was not the intention of the Legislature, in passing the last-named act, to revise all the laws relating to the Railroad Commission and thereby repeal existing laws in relation thereto.

[Ed. Note.—For other cases, see States, Dec. Dig. § 52.^2-*]

2. States (§ 52*)—Constitutional Law (§§ 70, 73*)—Jurisdiction—Review op Acts of Governor and Legislature Suspending and Removing Commissioner — Railroad Commissioners.

Under the provisions above quoted of ''he act of 1879, the Governor, for any reason s,, s-factory to himself, had the power to suspend from office any railroad commissioner, and a majority of the House and Senate, for any reason satisfactory to themselves, had the power to remove from office a commissioner previously suspended by the Governor.

(a) The General Assembly had the right to create the office of railroad commissioner, with such right of suspension in the Governor, and right of removal in a majority of the members of the House and Senate, and the provision in the act giving such right of suspension and removal is valid whether the commissioner be elected by the people or appointed by the Governor.

(b) The action of the Governor in suspending, and the majority of the members of the House and Senate in removing, a suspended commissioner is not subject to review by the courts.

[Ed. Note.—For other cases, see States, Dec. Dig. § 52;* Constitutional Law, Cent. Dig. §§ 129, 132-137; Dec. Dig. §§ 70, 73.*]

3. Statutes (§ 101*)—Special Laws — Act Relating to Class—"General Law."

The provisions above quoted, relating to the suspension and removal of railroad commissioners, did not constitute a special law. An act relating to persons or things as a class is a general, and not a special, law.

[Ed. Note.—For other cases, see Statutes, Cent. Dig. § 113; Dec. Dig. § 101.*

For other definitions, see Words and Phrases, vol. 4, pp. 3065-3071; vol. 8, pp. 7669, 7670.]

4. Constitutional Law (§§ 83, 87, 213*)— Equal Protection of Laws.

The provisions of the act of 1879, referred to in the preceding headnote, do 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 that clause of the Constitution of the United States providng that no state "shall deny to any person within its jurisdiction the equal protection of the laws" (Const. U. S. Amend, art. 14, § 1).

[Ed. Note.—For other cases, see Constitutional Law, Dec. Dig. §§ 83, 87, 213.*]

6. Statutes (§ 26*)—Officers.

The provisions of the act of 1879, giving the General Assembly the power of removal of a railroad commissioner upon a majority of the House and Senate declaring that he shall be removed, is not void because contrary to that clause of the Constitution of this state, providing that "every vote, resolution, or order, to which the concurrence of both houses may be necessary, except on a question of election or adjournment, shall be presented to the Governor, and, before it shall take effect, be approved 'by him, or, being disapproved, shall be repassed by two-thirds of each house." Const, art. 5, § 1, par. 17.

(a) Where a resolution is passed by a majority of the members of the House of Representatives, and a resolution is passed by a majority of the members of the Senate, both of which resolutions declare that a railroad commissioner is removed from office, the removal is not rendered inoperative because the resolutions were not approved by the Governor.

[Ed. Note.—For other cases, see Statutes, Cent. Dig. §§ 28, 34; Dec. Dig. § 26.*]

6. States (§ 52*)—Impeachment of Officers.

Nor are the provisions of the act of 1879 referred to in the preceding headnote void because contrary to that clause of the Constitution of this state, providing that "the senate shall have the sole power to try impeachments" (Const, art. 3, § 5, par. 3), or that clause providing that "the house of Representatives shall have the sole power to impeach all persons who shall have been, or may be, in office" (Const, art. 3, § 6. par. 3).

[Ed. Note.—For other cases, see States, Dec. Dig. § 52.*]

7. Constitutional Law (§ 318*)—Due Process of Law—"Property."

The provisions of the act of 1879, quoted in the first headnote, are not violative of article 14, § 1, of the amendments to the Constitution of the United States, providing that no state "shall deprive any person of property without due process of law, " nor of article 1, § 1, par. 3, of the Constitution of this state (Civ. Code 1895, § 5700), declaring that "no person shall be deprived of * * * property, except by due process of law."

(a) A public office is a public trust or agency, and is not the "property" of the incumbent thereof; and, when he is removed therefrom, he is not deprived of any property.

[Ed. Note.—For other cases, see Constitutional Law, Dec. Dig. § 318.*

For other definitions, see Words and Phrases, vol. 6, pp. 5693-5728; vol. 8, pp. 7768-7770.]

8. Constitutional Law (§ 197*)—"Attainder."

Nor are the provisions of the act of 1879, quoted in the first headnote, violative of article 1, § 3, par. 2, of the Constitution of this state (Civ. Code 1895, § 5730), providing that "no bill of attainder * * * shall be passed" (citing 1 Words and Phrases, pp. 620, 621, 779, 780).

[Ed. Note.—For other cases, see Constitutional Law, Dec. Dig. § 197.*]

9. States (§ 52*)—Removal — Construction of Statute—"Next."

The word "next" in the above-quoted provisions of the act of 1879, providing that the Governor shall report the fact of such suspeu-sion and the reason therefor to the next General Assembly, is to be construed in connection with its context, and means nearest in point of time; and if a General Assembly is in session when the suspension is made by the Governor, it is his duty to make his report to that General Assembly.

[Ed. Note.—For other cases, see States, Dec. Dig. § 52.^3-*

For other definitions, see Words and Phrases, vol. 5, pp. 4794-4796.]

10. Constitutional Law (§ 52*)—Distribution of Governmental Powers — Encroachment on Judiciary.

The provision in the act of 1S79 of the General Assembly, creating the office of railroad commissioner, in which that body reserved to itself unlimited discretion to remove any one holding such office, does not confer on the General Assembly judicial power; and such provision is not void because contrary to that provision of the Constitution of this state contained in Civ. Code 1895, § 5720, declaring: "The legislative, judicial, and executive powers shall forever remain separate and distinct, and no person discharging the duties of one shall at the same time exercise the functions of either of the others, except as herein provided."

[Ed. Note.—For other cases, see Constitutional Law, Dec. Dig. § 52.*]

11. Constitutional Law (§ 40*)—'Constitutionality of Statutes.

An act of the General Assembly cannot be by the courts declared void on the ground that it is contrary to the principles of justice and equity upon which the government of the United States and of this state are founded, or to the spirit of our institutions and that of the Constitution; but can only be declared invalid when it is inconsistent with some provision of the Constitution of this state, or repugnant to some provision of the Constitution of the United States.

[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. § 38; Dec. Dig. § 40.*]

Error from Superior Court, Chatham County; W. G. Charlton, Judge.

Quo warranto by S. G. McLendon against Joseph F. Gray. From the judgment ousting defendant from office, he brings error. Reversed.

Hitch & Denmark and Garrard & Meldrim, for plaintiff in error.

A. J. Cobb, J. R. Lamar, W. A. Little, and Candlers, Thomson & Hirsch, for defendant in error.

HOLDEN, J. 1, On August 21, 1907, Hon. Hoke Smith, then Governor of Georgia, appointed S. G. McLendon to fill an unexpired term as railroad commissioner, ending October 14, 1907. McLendon, at the time of his appointment, had been elected by the people as railroad commissioner for a term of six years, beginning October 15, 1907. On June 24, 1909, he was suspended from office by Governor Smith, who, the following day, reported to the General Assembly of Georgia the fact of such suspension and the reason therefor. After an investigation before a committee before which McLendon appeared and gave evidence, the Senate, on July 30, 1909, and the House of Representatives, on August 5, 1909, adopted resolutions removing McLendon from office; and on August 21, 1909, Hon. Joseph M. Brown, who had...