Gray v. McLendon

• Decision Date: 18 March 1910
• Citation: 67 S.E. 859,134 Ga. 224
• Parties: GRAY v. McLENDON.
• Court: Georgia Supreme Court

67 S.E. 859

134 Ga. 224

GRAY v. McLENDON.

Supreme Court of Georgia

March 18, 1910

Syllabus by the Court.

The act of the General Assembly approved Oct. 14, 1879 (Acts 1878-79 p. 125), providing for 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(a) The provisions above quoted were not repealed by the act approved Aug. 21, 1906 (Acts 1906, p. 100), providing for the election of railroad commissioners by the people instead of being appointed by the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(b) Nor were these provisions in the act of 1879 repealed by the act approved Aug. 23, 1907 (Acts 1907, p. 72).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.

Under the provisions above quoted of the act of 1879, the Governor for any reason satisfactory 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.

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.

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 providing that no state "shall deny to any person within its jurisdiction the equal protection of the laws" (Const. U.S. Amend. art. 14, § 1).

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.

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).

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.

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).

The word "next" in the above-quoted provisions of the act of 1879, providing that the Governor shall report the fact of such suspension 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.

The provision in the act of 1879 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."

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.

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.

Removal of Officers

361k101(1) In General.

An act relating to persons or things as a class is a general and not a special law, and hence Act Oct. 14, 1879 (Laws 1878-79, p. 125), relating to the suspension and removal of railroad commissioners, is not a special law.

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 succeeded Governor Smith as Governor of the state, appointed Joseph F. Gray, the present plaintiff in error, to the office of railroad commissioner to fill the vacancy caused by the removal of McLendon. Shortly thereafter McLendon instituted quo warranto proceedings against Gray, upon the final hearing of which Hon. Walter G. Charlton, judge of the Eastern circuit, granted an order overruling the demurrer of Gray, the respondent, to the application of McLendon, the relator, sustaining the latter's demurrer to the former's plea of estoppel, and making the rule absolute, and issuing a writ of ouster to remove Gray from office. Gray excepted.

The Constitution of 1877 provides that the power and authority of regulating freight rates and passenger tariffs is conferred upon the General Assembly, whose duty it is to pass laws for the purpose of such regulation, etc. In pursuance of this provision of the Constitution, the act of 1879 (Acts 1878-79 p. 125) was passed providing for the appointment of three railroad commissioners by the Governor, and prescribing their duties. Many acts relative to the Railroad Commission and amendatory of the act of 1879 have since been passed. The provision in the act of 1879 under which McLendon was suspended and removed, and which is now embodied in Civ. Code, § 2185, is as follows: "Any commissioner may be suspended from office by order of the Governor, who...