Moore v. Bell

• Decision Date: 15 September 1938
• Docket Number: 12408,12409.
• Citation: 198 S.E. 711,186 Ga. 583
• Parties: MOORE v. BELL. BELL v. MOORE.
• Court: Georgia Supreme Court

198 S.E. 711

186 Ga. 583

MOORE v. BELL.

BELL v. MOORE.

Nos. 12408, 12409.

Supreme Court of Georgia

September 15, 1938

Error from Superior Court, Baldwin County; James B. Park, Judge.

Quo warranto by M. S. Bell against J. N. Moore. Judgment sustaining the petitioner's right to office as one of the regents of the University System of Georgia, accompanied by an opinion favorable to the respondent on several questions and respondent brings error, and petitioner brings cross-error.

Judgment affirmed on the main bill of exceptions; cross-bill of exceptions dismissed.

Syllabus by the Court.

1. The language in the act approved February 12, 1938 (Ga.L.Ex.Sess.1937-1938, p. 203), 'all members of all boards, * * * as well as other appointees authorized by law to be made by the Governor, and not submitted to or confirmed by the State Senate since January 1, 1937, or at this special session of 1937-1938, shall * * * automatically cease to hold such office and the same shall be vacant, and it shall be the duty of the Governor to fill such vacancy by appointment and approval as herein provided,' when considered in connection with the title, 'An act to provide for the confirmation by the Senate of appointees of the Governor for public office; and for other purposes,' should not be construed as declaring a vacancy in an office held by an officer who had been duly appointed by the Governor and confirmed by the Senate previously to the time stated in the act. Under such construction as applied to the instant case the judgment sustaining the right of the petitioner and ousting the respondent from the office in question, was not erroneous.

2. As the decision adverse to the plaintiff in error is controlled by a proper construction of the act on which he relies, it becomes unnecessary to decide or make further reference to questions raised as to constitutionality of the act. As a rule, decisions as to constitutionality of statutes will not be made where not necessary to a proper decision of the case. Code Ann. § 2-402, notes on p. 169; Georgia Power Co. v Decatur, 173 Ga. 219(3), 159 S.E. 863.

M. J Yeomans, Atty. Gen., W. H. Duckworth, Asst. Atty. Gen., and Miles W. Lewis, of Greensboro, for plaintiff in error.

Sam H. Wiley, of Sparta, E. W. Jordan, of Sandersville, and Frank W. Bell, of Milledgeville, for defendant in error.

Hugh Howell, of Atlanta, for party at interest, not party to record.

ATKINSON Presiding Justice.

In 1935 Miller S. Bell as appointee of the Governor duly confirmed by the Senate was inducted into office as one of the 'Regents of the University System of Georgia' in pursuance of sections 45 and 50, 51, of the State government reorganization act approved August 28, 1931 (Ga.L.1931, pp. 7, 20-22) for a term of six years. Bell was in office at the time of the passage of a subsequent act approved February 12, 1938 (Ga.L.Ex.Sess.1937-1938, p. 203). But his appointment was not resubmitted to or reconfirmed by the Senate after January 1, 1937, or at the special session of 1937 and 1938. While the status was as thus indicated, the act approved February 12, 1938, was passed. The caption of that act was: 'An Act to provide for the confirmation by the Senate of appointees of the Governor for public office; and for other purposes.' The act contained the provision 'that all members of all boards, * * * as well as other appointees authorized by law to be made by the Governor, and not submitted to or confirmed by the State Senate since January 1, 1937, or at this special session of 1937-1938, shall * * * automatically cease to hold such office and the same shall be vacant and it shall be the duty of the Governor to fill such vacancy by appointment and approval as herein provided.' Section 2, p. 204. In pursuance of this act the Governor appointed Jere N. Moore as successor to Bell. The appointment was duly confirmed by the Senate, and Moore was inducted into office. Bell instituted quo warranto proceedings to oust Moore and recover possession of the office, on the ground that in virtue of his previous appointment duly confirmed by the Senate he was legally entitled to the office, and that the holding of the office by Moore was unauthorized by law. The act of 1938, in pursuance of which Moore received his appointment, was attacked as unconstitutional on various grounds. The respondent filed a general demurrer and an answer. The allegations of the petition as amended and admissions in the answer showed the case substantially as stated above. The judge, trying the case on the pleadings and statement of both sides in open court that no issue of fact was involved, rendered judgment sustaining the right of Bell to the office and ousting the respondent. In rendering the judgment the judge announced his view of the law on several questions raised, certain of them favorable to the petitioner and others favorable to the respondent. The respondent brought a bill of exceptions, and the petitioner brought a cross-bill of exceptions.

1. A controlling question is proper construction of the excerpt from the act approved February 12, 1938 (Ga.L.Ex.Sess.1937-1938, p. 203), that 'all members of all boards, * * * as well as other appointees authorized by law to be made by the Governor, and not submitted to or confirmed by the State Senate since January 1, 1937, or at this special session of 1937-1938, shall * * * automatically cease to hold such office and the same shall be vacant and it shall be the duty of the Governor to fill such vacancy by appointment and approval as herein provided.' Section 2, p. 204. When considered alone or in connection with the title, 'An Act to provide for the confirmation by the Senate of appointees of...