Long v. Rose

• Decision Date: 10 March 1909
• Citation: 64 S.E. 84,132 Ga. 288
• Parties: LONG et al. v. ROSE et al.
• Court: Georgia Supreme Court

64 S.E. 84

132 Ga. 288

LONG et al. v. ROSE et al.

Supreme Court of Georgia

March 10, 1909

Syllabus by the Court.

Pol Code 1895, § 223, declares that "persons holding any office of profit or trust under the government of the United States (other than that of postmaster), or of either of the several states, or of any foreign state," are "held and deemed ineligible to hold any civil office in this state." Held, that this did not render one who held the office of solicitor of the county court of a county ineligible to hold the office of mayor of a municipal corporation located in such county; nor did it render persons who respectively held the offices of county treasurer and member of the board of education of the county ineligible to hold the offices of aldermen of such municipal corporation.

[Ed Note.-For other cases, see Municipal Corporations, Cent. Dig § 314; Dec. Dig. § 142. ^[*]]

Error from Superior Court, Camden County; T. A. Parker, Judge.

Quo warranto by J. M. Long and others against D. P. Rose and others. From a Judgment dismissing the case, relators bring error. Affirmed.

J. M Long and others made application for leave to file an information in the nature of a quo warranto against D. P. Rose, W. H. Mullin, and J. R. Bachlott, in order to inquire into their right to hold the offices of mayor and aldermen of the city of St. Mary's. Permission being granted to file the information, the relators alleged as follows: They are residents, citizens, and taxpayers of St. Mary's. Under and by virtue of the charter of that city, on or about the first Monday in April, 1908, the Governor of the state appointed and commissioned respondent Rose as mayor of the city and respondents Mullin and Bachlott as aldermen, each for the term of one year. Each of them accepted the appointment and was duly commissioned, taking the oath of office and assuming and entering upon the discharge of the duties thereof, and is still doing so. They are without legal warrant or authority for so doing, each of them being ineligible to hold the office for the reasons hereafter stated: "Relators charge that respondent D. P. Rose is holding the office of mayor of said city without legal warrant and authority so to do, and is ineligible to hold said office, for the reason that at the time of his appointment and commission, and at the time of his taking the oath and assuming the discharge of the duties of said office of mayor, he was and is now commissioned, qualified, and exercising the duties of and holding an office of profit and trust under the government of the state of Georgia, to wit, solicitor of the county court of Camden." Respondent Mullin is holding the office of alderman of said city without legal warrant or authority so to do,'and is ineligible to hold said office, for the reason that at the time of his appointment and commission, and at the time of his taking the oath and assuming the discharge of the duties of said office, he was and is now commissioned, qualified, and exercising the duties of and holding an office of profit and trust under the government of the state of Georgia, to wit, member of the board of education of Camden county. Respondent Bachlott is holding the office of alderman of said city without legal warrant or authority so to do, and is ineligible to hold said office, for the reason at the time of his appointment and commission, and at the time of his taking the oath and assuming the discharge of the duties of said office, he was and is now commissioned, qualified, and exercising the duties of and holding an office of profit and trust under the government of the state of Georgia, to wit, treasurer of Camden county. For these reasons respondents are mere de facto officials of the city, and relators pray that they be ousted. The respondents answered, admitting that they were appointed to the offices of mayor and aldermen, respectively, and that they were discharging the duties thereof, but denied that they were ineligible to do so. They admitted, also, holding the other offices described in the information. They alleged that respondent Rose was appointed mayor subsequently to his appointment as solicitor, and that he was no longer solicitor of the county court. They also alleged that each of them was a resident and freeholder of the city at the time of his appointment and qualification, and so remained. By consent of counsel for both parties the case was heard before the judge of the superior court at chambers on the petition and answer, there being no issue of fact. He denied the prayer of the petition, and dismissed the case. The relators excepted.

W. G. Brantley and Brantley & Butts, for plaintiffs in error.

Osborne & Lawrence, for defendants in error.

ATKINSON J.

At common law there was no inhibition against the holding of more than one office, provided they were not inconsistent with each other. In many of the United States there are constitutional provisions or legislative acts on this subject, limiting the power to hold different offices or prohibiting the holding of certain different offices at the same time or rendering certain persons holding offices of a particular character ineligible to offices of another described character. In this state Pol. Code 1895, § 223 declares as follows: "The following persons are held and deemed ineligible to hold any civil office in this state, and the existence of either of the following states of facts is a sufficient reason for vacating any office held by such person, but the acts of such person, while holding a commission, are valid as the acts of an officer de facto, viz.: *** (4) Holding Other Offices.-Persons holding any office of profit or trust under the government of the United States (other than that of postmaster), or of either of the several states, or of any foreign state." This first appeared codified in the original Code which took effect January 1, 1863. By act approved September 11, 1891 (Acts 1890-91, p. 102), an act was passed, the caption of which was "An act to prohibit in this state the holding of more than one county office by one person, at any one time, and for other purposes." It is now embodied in Pol. Code 1895, § 224, as follows: "No person shall hold, in any manner whatever, or be commissioned to hold at one time, more than one county office, except by special enactment of the Legislature heretofore or hereafter made; nor shall any commissioned officer be deputy for any other commissioned officer, except by such special enactment." On behalf of the plaintiffs in error it is contended that the purpose of paragraph 4 of section 223 of the Political Code of 1895 was to prevent one person from absorbing and holding more offices than one, and to prevent the evils which might accrue from professional office seeking; that the state of Georgia is one of the several states of the Union, and the expression, "or of either of the several states," is sufficiently broad to cover this state; that the section referred to renders ineligible "to hold any civil office in this state," any person holding any office of profit or trust under the government of this state; that each of the offices of mayor and aldermen in the city of St. Mary's falls within the designation, "any civil office in this state"; and therefore that the respondents, who held, respectively, the offices of solicitor of the county court, member of the board of education of the county, and county treasurer, and thus held an office of profit or trust under the government of this state, were ineligible to the offices of mayor and aldermen. On the other hand, it is contended that the purpose of the Code paragraph just cited was not to prevent any person in this state from holding more than one office in it, but was to prevent persons who held any office of profit or trust under other governments, and owed allegiance to them, from becoming officials of this state, and thus having a divided allegiance to two masters; that the words "or of either of the several states" meant either of the several states other than this state, and did not include...