Maddox v. Fortson

• Decision Date: 26 January 1970
• Docket Number: No. 25641,25641
• Citation: 226 Ga. 71,172 S.E.2d 595
• Parties: Lester G. MADDOX et al. v. Ben FORTSON et al.
• Court: Georgia Supreme Court

Page 595

172 S.E.2d 595

226 Ga. 71

Lester G. MADDOX et al. v. Ben FORTSON et al.

No. 25641.

Supreme Court of Georgia.

Jan. 26, 1970.

Rehearing Denied Jan. 29, 1970.

Certiorari Denied March 2, 1970, See 90 S.Ct. 999.

Syllabus by the Court

The provision of Art. V, Sec. I, Par. I of the 1945 Constitution that: 'The Governor serving at the time of the adoption of this Constitution and future Governors shall not be eligible to succeed themselves and shall not be eligible to hold office until after the expiration of four years from the conclusion of his term of office,' is not violative of the provisions of either the First Amendment or the Fourteenth Amendment to the Constitution of the United States.

Tully M. Bond, Jr., Macon, Sharpe, Sharpe, Hartley & Newton, T. Malone Sharpe, Lyons, E. Alex Davis, Butler, for appellants.

Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Exec. Asst. Atty. Gen., William L. Harper, R. J. Castellani, Asst. Attys. Gen., Robert S. Reeves, Henry M. Henderson, Andrew A. Smith, O'Kelley, Hopkins v. VanGerpen, William C. O'Kelley, Steven J. Kyle, Heyman & Sizemore, Lamar Sizemore, Paul L. Hanes, Atlanta, for appellees.

ALMAND, Chief Justice.

Lester G. Maddox individually and seven other named persons on behalf of themselves and as a group for all electors and registered voters qualified to vote in the general election in the State of Georgia, filed their complaint in Fulton Superior Court against Ben W. Fortson, Jr., as Secretary of State and as Chairman of the State Election Board and numerous other persons as officials of political parties.

The prayers of the complaint were that the court declare the constitutional prohibition (Art. V, Sec. I, Par. I) of the 1945 Constitution which provides: 'The Governor serving at the time of the adoption of this Constitution and future Governors shall not be eligible to succeed themselves and shall not be eligible to hold office until after the expiration of four years from the conclusion of his term of office,' be declared violative of the equal protection clause of the 14th Amendment and the 1st Amendment to the Federal Constitution.

The complaint alleges: That Lester G. Maddox, the incumbent Governor of the State of Georgia, desires to be a candidate for Governor of the State for a term beginning in January, 1971, in the Democratic Party Primary and the General election to be held in 1970. That though he is fully qualified in other respects the defendants in their official State and party positions will refuse to permit him to be a candidate in the primary and general election in 1970 because of the constitutional prohibition above quoted.

It was further alleged that an actual controversy exists between the plaintiffs and the defendants and this action is authorized by the Declaratory Judgment Act (Anno. Code Ann. 110-1101 et seq.) and a decision is needed to remove the uncertainty as to the right of Maddox to be a candidate for Governor in the 1970 elections and to provide the co-plaintiffs of Maddox an equal and fair opportunity to vote for Maddox in said elections.

To this complaint the several defendants filed their answers and moved to dismiss the plaintiffs' complaint on the ground that it failed to state a claim upon which relief could be granted.

When the cause came on for a hearing the court found that the challenged provision of the Constitution of Georgia prohibiting an incumbent Governor from being eligible to run for another term did not violate the equal protection clause of the 14th Amendment, nor the 1st Amendment to the Federal Constitution. The motion to dismiss was sustained. The appeal is from this order.

1. In Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968), the court said: 'In determining whether or not a state law violates the Equal Protection Clause, we must consider the facts and circumstances behind the law, the interests which the State claims to be protecting and the interests of those who are disadvantaged by the classification.'

In order 'to consider the facts and circumstances' under which Art. V, Sec. I, Par. I of the Constitution of 1945 was adopted, we look backward in the State's constitutional history to find the interests which the State claims to be protecting to determine why the people in adopting their Constitution prohibited an incumbent Governor from serving a term of four years, from being eligible to the office until after the expiration of four years from the conclusion of his term of office.

Article 23 of Georgia's first Constitution (1777) provided a one-year term for the Governor and made him ineligible to the office for two years after his service of one year.

Article 2 of the 1789 Constitution provided a term of two years with no prohibition as to holding the office in the future.

Article 3, Section 1, Par. 1 of the 1861 Constitution contained the same provision as the 1789 Constitution.

Article 3, Section 1, Par. 1 of the 1865 Constitution provided a term of two years for the Governor but made him ineligible for re-election after expiration of a second term for a period of four years.

Article 4, Section 1 of the 1868 Constitution fixed the term at four years with no prohibition for service of a future term.

Article 5, Section 1, Par. 2 of the 1877 Constitution provided a term of two years but that the incumbent at the end of a second term was ineligible for four years. This article of the Constitution was amended in 1941 (Ga.L.1941, p. 86) to provide for a four year term and that at the end of the term the incumbent Governor would be ineligible for election to the succeeding term.

In 1945 the Commission to draft a new Constitution recommended to the General Assembly the continuation of the four year term as provided in the 1789 Constitution, as amended, but left out of the proposal the provision as to ineligibility. The General Assembly refused to follow this proposal and put in the Constitution the same provisions of the 1877 Constitution as amended in 1941. The present provision under attack here is found in Art. V. Sec. I, Par. I (Code Ann. § 2-3001) of the Georgia Constitution (1945).

So it will be seen that in the 192 years of the history of the State Constitution the people of Georgia have for 107 years had in their Constitution a provision making ineligible the election of an incumbent Governor for another term at the succeeding election after serving four years.

An examination of the Constitutions of the several States discloses that twenty-four States of the Federal Union have restrictions as to eligibility after service of one or two terms similar to Georgia; Alabama, Alaska, Delaware, Florida, Indiana, Kentucky, Louisiana, Maine, Maryland, Mississippi, Missouri, Nebraska, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Virginia, and West Virginia (The Book of the States, 1968-69, pp. 125, 133).

In 1951, the 22nd Amendment to the Federal Constitution was approved. This amendment precludes an incumbent President from seeking the office for a third time and it is more stringent than the Georgia provision which permits an incumbent Governor to seek the office after an interval of four years.

2. Throughout the history of the Federal Union since the adoption of the Constitution of the United States in 1789, it has been recognized that each State in the Federal Union has the sole right to determine the qualifications of those seeking State or local offices and the qualifications of voters in State elections as long as the laws of a State did not deny to the citizens of the State their rights under the Federal Constitution.

In Taylor and Marshall v. Beckham, 178 U.S. 548, pp. 570, 20 S.Ct. 890, 898, 44 L.Ed. 187, (1889), it was said: 'It is obviously essential to the independence of the states, and to their peace and tranquality, that their power to prescribe the qualifications of their own officers, the tenure of their offices, the manner of their election, and the grounds on which, the tribunals before which, and the mode in which, such elections may be contested, should be exclusive and free from external interference, except so far as plainly provided by the Constitution of the United States.'

In Wilson v. North Carolina, 169 U.S. 586, 594, 18 S.Ct. 435, 438, 42 L.Ed. 865, (1897), the court said: 'In its internal administration the state (so far as concerns the federal government) his entire freedom of choice as to the creation of an office for purely state purposes, and of the terms upon which it shall be held by the person filling the office.' 'So long as our present dual form of government endures, the states, it must never be forgotten, 'are as independent of the general government as that government within its sphere is independent of the States.' The Collector v. Day, 11 Wall. 113, 124, 20 L.Ed. 122.' Brush v. Commissioner, 300 U.S. 352, 364, 57 S.Ct. 495, 497, 81 L.Ed. 691.

The right to vote as intended to be protected by the 14th Amendment refers to the right to vote as established by the laws and Constitution of the State, which has broad powers to determine the conditions under which such right of suffrage may be exercised, such as residence requirements, age or previous criminal record, absent of course, any discrimination which the 14th Amendment condemns. McPherson v. Blacker, 146 U.S. 1, 13 S.Ct. 3, 36 L.Ed. 869, (1892). Lassiter v. Northampton County Board of...