Hulgan v. Thornton
| Decision Date | 14 September 1949 |
| Docket Number | 16728. |
| Parties | HULGAN v. THORNTON. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
2. Where the right of a county commissioner to hold office is attacked by reason of his having been, previously to his election, convicted of a felony, and therefore not a qualified voter or eligible 'to hold any civil office,' the fact that he received a pardon after the institution of the proceedings, but prior to the decision of the trial judge, does not remove his ineligibility.
On January 12, 1949, Howard H. Thornton as a citizen and taxpayer presented his application for leave to file an information in the nature of quo warranto, to oust John C Hulgan from the office of Commissioner of Roads and Revenues of Clayton County, to which Hulgan had been elected on November 2, 1948, on the ground that he was ineligible to hold such office by reason of the fact that he was not a qualified voter and had been convicted on August 6 1932, in the United States District Court for the Northern District of Alabama, of a crime involving moral turpitude and had served a three-year sentence in the Atlanta Federal Penitentiary. The information contained a prayer that the respondent be ousted from office and the office declared vacant. The trial judge issued an order granting leave to file the application, and required the respondent to show cause why the prayers should not be granted.
The respondent filed a general demurrer which was overruled, and he excepted pendente lite. To the information the respondent filed his answer which as amended averred that on April 15, 1949, since the filing of his original answer, he had been granted a full and complete pardon by the President of the United States for the offense aforesaid; and that, if the conviction referred to constituted a disqualification to hold office, such disqualification has been removed by reason of the pardon.
On the trial it was stipulated by the parties that the allegations with reference to the conviction were true; that, after the quo warranto proceeding had been filed, but prior to the hearing, the President of the United States granted to the respondent a full, complete, and unconditional pardon; that there were no issues of fact to be submitted to a jury, and the only question for decision was whether the respondent's ineligibility to hold the office had been removed by virtue of the pardon.
The trial court held that the respondent was ineligible to hold the office, and ordered him to vacate the same and to turn over all of the books and papers to the parties entitled to the office, as may be hereafter determined. The respondent assigned error on that judgment.
Howard, Tiller & Howard, Atlanta, W. H. Reynolds, Jonesboro, for plaintiff in error.
S. B. Wallace, Griffin, T. C. Sowell, Jonesboro, for defendant in error.
ATKINSON, Presiding Justice (after stating the foregoing facts).
1. The petition of Thornton as originally filed contained various allegations to establish his claim to the office, though he was defeated in the election. After a general demurrer was interposed and before a ruling thereon was made, all allegations asserting a claim to the office were stricken, thus leaving the petition only with allegations attacking the eligibility of Hulgan, to wit, that at the time of the election he was not a legal voter and had previously been convicted of a felony. Accordingly, as the petition stood at the time the ruling was made on the demurrer, it was a proceeding brought as a citizen and taxpayer, and not as a claimant to the office, and therefore the trial judge did not err in overruling the demurrer. Davis v. City Council of Dawson, 90 Ga. 817(2), 17 S.E. 110; Crovatt v. Mason, 101 Ga. 246 (6), 28 S.E. 891; Howell v. Pate, 119 Ga. 537(3), 46 S.E. 667; Hathcock v. McGouirk, 119 Ga. 973(2), 47 S.E. 563.
The case differs from Stephens v. Wohl-wender, 197 Ga. 795, 30 S.E.2d 470, as there the allegations clearly showed that the proceedings had been instituted by Stephens as a claimant of the office.
The record discloses that in 1932 Hulgan pleaded guilty in the United States District Court for the Northern District of Alabama to an indictment charging in three courts, first, the larceny and transportation in interstate commerce of a described automobile; second, the receiving and disposing of a described automobile knowing the same to have been stolen; and third, the larceny and illegal transportation of another described automobile.
There are three provisions of our law relating to pardons as affecting public officers. Article 2, section 2, paragraph 1, of the Constitution of 1945, Code, Ann., § 2-801, declares: The Code, § 89-101, declares: The act, Ga.L.1943, pp. 185, 195, Sec. 26, Code Ann.Supp. § 77-528, declares: 'Following the effective date of this act, all pardons shall relieve from civil and political disabilities.'
It will be noted that both the constitutional provision and the Code section are not limited to such crimes as are committed in this State, but cover those committed elsewhere, where the offense is a felony or a crime involving moral turpitude according to the laws of this State. One of the offenses for which Hulgan was pardoned was the larceny of an automobile, which is a felony under Code, § 26-2603.
Accordingly, we are not here concerned with the question of a crime which is a felony in another State but not a felony under the law of this State.
It is clear that Hulgan, having been convicted of the larceny of an automobile, was, at the time of his election, ineligible under Code, § 89-101(3) 'to hold any civil office.' We are therefore confronted with the question of whether, after being elected and entering upon the duties of the office and after the filing of these proceedings, the granting of the pardon makes him eligible to hold the office.
Another provision of our Constitution which might throw some light on the question is article 11, section 2, paragraph 1, Code Ann. § 2-7901, which declares: ...
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