McDuffie v. Perkerson

• Decision Date: 14 November 1933
• Docket Number: 9780.
• Citation: 173 S.E. 151,178 Ga. 230
• Parties: McDUFFIE v. PERKERSON et al.
• Court: Georgia Supreme Court

173 S.E. 151

178 Ga. 230

McDUFFIE v. PERKERSON et al.

No. 9780.

Supreme Court of Georgia

November 14, 1933

Rehearing Denied Feb. 19, 1934.

Syllabus by the Court.

1. "The writ of quo warranto may issue to inquire into the right of any person to any public office the duties of which he is in fact discharging, but must be granted at the suit of some person either claiming the office or interested therein." The remedy by writ of quo warranto or information in the nature of a writ of quo warranto applied "to all civil officers of the State of Georgia," except the Governor. Civ. Code 1910, § 5451.

2. "Where the purpose is to declare a public office vacant any citizen and taxpayer may file a proceeding in the nature of quo warranto." Clarke v. Long, 152 Ga. 619 111 S.E. 31; Stanford v. Lynch, 147 Ga. 518, 519, 94 S.E. 1001 and cit.

3. The controlling question in this case is whether or not grand jurors are public officers. We hold that grand jurors are not public officers within the purview of the law as provided in the sections of the Code mentioned.

Error from Superior Court, Fulton County; Wm. E. H. Searcy, Jr. Judge.

Application by P. C. McDuffie for leave to file an information in the nature of quo warranto against W. T. Perkerson and others. To review a judgment denying his application, applicant brings error.

Affirmed.

RUSSELL C.J., dissenting.

On May 17, 1933, the plaintiff as a citizen and taxpayer applied to the superior court for leave to file an information in the nature of quo warranto. Because of disqualification, the judge of that court to whom the application was tendered designated the judge of the Griffin circuit to preside, who refused to sanction the application and denied leave to file the information. The bill of exceptions contains two assignments of error. The first complains that on a hearing, in response to an order requiring the petitioner "to show cause why he should be permitted to file said application and information," the court, against the objection of petitioner that the same were immaterial and irrelevant to the matters then before the court, permitted the reading of two affidavits and an unverified statement of Hon. Virlyn B. Moore, a judge of Fulton superior court. The second complains of the judgment denying the application for leave to file the information. The application was directed against Perkerson and others, who, it was alleged, were "performing the duties of grand jurors at the May-June, 1933, term of Fulton superior court."

The facts on which the petitioner bases his right to the writ, as set forth in his application, are: That on or about April 14, 1933, Hon. V. B. Moore, a judge of Fulton superior court, caused the jury boxes, both grand and petit, to be brought into his courtroom; that he unlocked them, broke the seals, and drew from them from time to time handfuls of the small jury tickets therein, each containing the name and address of a person eligible for jury service; that the tickets were not drawn one by one; that the judge did not count the tickets or determine the number removed by him, but handed them to H. G. Bradley, who took them and purported to list the names thereon, and did list 240 names; that at no time during the proceeding, which consumed about two hours, was any announcement made by the judge or any attaché that a grand jury for the May-June term of the court was about to be or was being drawn; that the judge did not ascertain or cause the name of any person appearing on such tickets to be read aloud; that he did not cause each name as drawn to be returned to apartment 2 of the jury box; that he did not write down or cause the writing in his presence of the names on the tickets drawn; that, except for opening the box, breaking the seal, and handing the tickets in handfuls to Bradley, the judge did not participate in the drawing and did not determine whether the list of names prepared by Bradley was a true and complete list of the names appearing on the tickets drawn, but instead gave his attention exclusively to the trial of a criminal case which was proceeding before him; that on April 20 Bradley presented to the judge a typewritten list purporting to be a true and complete list of the names drawn on April 14; that, relying solely on the list so prepared by Bradley as true and complete, and without himself knowing that the list was true and complete, the judge certified the same; that by this method it was placed within the power of Bradley to omit from the list names actually drawn, or to switch names from the petit jury to the grand jury list, or vice versa, or to insert the names of persons not in fact drawn, and during the interval between the drawing and the certification it was placed within the power of Bradley or other persons to determine affiliations, connections, and bias of persons appearing on the list; that Bradley is a bailiff appointed by the board of commissioners of Fulton county, and his salary is fixed by the board; that Perkerson, foreman of the grand jury, is a relative of a county commissioner who was then under indictment, and of other persons employed by the county; that Perkerson was foreman of a grand jury in or about 1931, and, if the requirements of the Penal Code, § 823, had been observed, he would not have been again drawn for grand jury service for about sixteen years; that it was peculiarly important to the citizens and taxpayers to have a legally constituted grand jury; that the March-April term grand jury had set up a citizens' committee under the Penal Code, § 841, to report to the next grand jury; that the county commissioners had given a written promise to the March-April term grand jury to institute reforms which would effect a saving of half a million dollars in county expenditures, and it was important to have a legally constituted grand jury in office to see that the promised reforms were carried out; that the March-April term grand jury had set forth in its general presentments serious abuses in the superior and municipal courts of the county, and had recommended immediate investigation by the next grand jury; that the May-June term grand jury had returned many indictments which would be void, and great expense to the taxpayers would be incurred in trying cases under such indictments; that the March-April term grand jury was, through refusal of the solicitor general to draw, at its request, indictments charging county commissioners with non-performance of official duty and misappropriation of county funds, hindered and delayed in its investigations; that on April 12 the five judges of the superior court signed an order informing the grand jury that such expressions on their part were not only improper but tended to disqualify them to act on such matters if legally brought before them; that on April 14, the day the purported grand jury for the May-June term was drawn, one of the judges of the superior court rebuked the March-April term grand jury and warned them, in future deliberations, "to be sure that you hold yourselves within the limitations prescribed by law"; that the facts set out by the March-April term grand jury as to nonperformance of official duty and misappropriation of county funds were notorious, and it was the right of the taxpayers to have in office a legally constituted grand jury to act thereon; that the county commissioners in their sole discretion fix part of the salaries of the judges of Fulton superior court; that they had caused large additions to be made to such salaries paid by the state; and that named judges had reciprocated by appointing a county commissioner to lucrative employments in connection with trust estates within the control of the court, and therefore that the judges of the court were disqualified.

P. C. McDuffie and Madison Richardson, both of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., of Atlanta, for defendants in error.

Marion Smith, Jas. A. Branch, and Edgar Watkins, all of Atlanta, for parties at interest, not parties to record.

GILBERT Justice.

1, 2. Headnotes 1 and 2 need not be elaborated.

3. The controlling question is whether or not grand jurors are public officers within the purview of the law of this state in respect to the remedy by writ of quo warranto or information in the nature of quo warranto. Under the Civil Code, § 5451, the writ of quo warranto applies only where the right of any person to a "public office" is involved, and in section 5454 the remedy applies where civil officers are concerned. The words "civil officers" are obviously used in contradistinction to military officers. If grand jurors are public officers, the remedy sought in this case is applicable; otherwise it is not. If the remedy is not applicable, it is needless to discuss any other question in the case. Incidentally it may be said that it is also unnecessary to discuss applicability of the writ sought to offices other than public offices. The controlling question has never been decided by this court. Numerous criteria have been mentioned by text-writers and in decided cases, which should be considered in determining whether a person is an officer. No one of them is conclusive in every case, and, taken altogether, the question is frequently left in doubt. In this state it has been held that "an individual who has been appointed or elected in a manner prescribed by law, who has a designation or title given him by law, and who exercises functions concerning the public assigned to him by law, is a public officer." Bradford v. Justices, 33 Ga. 332; Polk v. James, 68 Ga. 128 (2); Wiley v. Sparta, 154 Ga. 1, 14, 114 S.E. 45, 25 A.L.R. 1342; 46 C.J. 928, § 19. In 22 R.C.L. 372, § 2, it is said: "Since one who holds an office is an 'officer,' it becomes...