Partain v. Maddox

• Decision Date: 20 May 1971
• Docket Number: Nos. 26441,26447,s. 26441
• Citation: 227 Ga. 623,182 S.E.2d 450
• Court: Georgia Supreme Court
• Parties: J. O. PARTAIN, Jr. v. Joseph G. MADDOX. Joseph G. MADDOX v. J. O. PARTAIN, Jr.

Page 450

182 S.E.2d 450

227 Ga. 623

J. O. PARTAIN, Jr. v. Joseph G. MADDOX.

Joseph G. MADDOX v. J. O. PARTAIN, Jr.

Nos. 26441, 26447.

Supreme Court of Georgia.

May 20, 1971.

Syllabus by the Court

1. The purported resignation of Joseph G. Maddox as a member of the State Board of Pardons and Paroles was void.

(a) His appointment to that office was valid.

2. It was not shown that Member Maddox had vacated his office due to abandonment or forfeiture by engaging in another business or profession and by ceasing to perform the duties of his office.

3. In view of 1 and 2 above, Member Maddox is the incumbent of the office.

(a) Thus it was not necessary for Richard A. Chappell to be a party to this action.

4. Continuing the temporary restraining order was not an abuse of discretion.

Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Robert J. Castellani, Asst. Atty. Gen., Atlanta, for appellant.

George G. Finch, Atlanta, for appellee.

GRICE, Justice.

The substantial issue in this appeal and cross appeal involves whether a purported resignation of a member of the State Board of Pardons and Paroles is valid. The appeal (case number 26441), by J. O. Partain, Jr., emanates from a judgment rendered in an action filed in the Superior Court of Cobb County by Joseph G. Maddox (sometimes hereinafter referred to as Member Maddox), originally against only J. O. Partain, Jr., as chairman of that board and individually. The cross appeal (case number 26447) by Member Maddox arises from the same judgment. In the enumeration of errors, the appellant in the main appeal takes the position that the resignation is valid, while the appellant in the cross appeal avers that it is void. The judgment and the enumerations will be dealt with hereinafter.

The complaint of Member Maddox, insofar as necessary to recite here, is as follows: That he was appointed a member of the board on March 7, 1968, to fill an unexpired term and was confirmed by the Senate on March 7, 1968; that thereafter, on April 10, 1969, he was appointed for a full seven year term as provided by the Georgia Constitution (Art. V, Sec. I, Par. XI), and on June 12, 1969, was confirmed by the Senate of Georgia.

The complaint also recites that immediately prior to his appointment for the full term on April 10, 1969, Governor Lester G. Maddox demanded and required that he sign an undated resignation from the office to which he was about to be appointed; it also avers that during early June, 1970, a joint Senate-House committee undertook to investigate the practice of the Governor requiring an appointee to a constitutional office to sign an undated resignation; that on or about June 6, 1970, the chairman of that committee ascertained that Member Maddox had signed such a resignation; that on June 9, 1970, he received a letter from the chairman, which expressed disapproval and asserted the invalidity of the practice, and urged that he immediately withdraw his letter of resignation.

The complaint states further that immediately after Member Maddox had thus been contacted, Governor Maddox telephoned him and during that conversation Member Maddox requested that his resignation letter be returned to him, stating that he was then and there withdrawing it and repudiating it as illegal, unconstitutional, against public policy, null and void; the complaint also alleged that Member Maddox has faithfully performed the duties of his office.

The complaint continues that on December 30, 1970, Member Maddox was requested to appear before the committee and did so on January 7, 1971; that prior to his committee appearance on that date he went to his office and performed various duties as a member of the board; that after the committee had recessed for the day, Member Maddox was advised that the locks had been changed on the door to his office at the direction of the defendant Partain; that on the morning of January 8, 1971, he went to his office accompanied by his attorney and demanded of the defendant Partain that he be permitted to enter his office and resume his duties; and that he was then advised by the said defendant that the locks had been changed and he would not be permitted to enter his office.

The complaint also avers that he has not resigned his position and at the time he signed the undated resignation he had no intention of relinquishing his office, nor did he do so; that the defendant Partain is illegally and unlawfully interfering with him in the proper discharge of his duties as a member of the board; that it has been necessary for him to employ an attorney to represent him; and that the acton and conduct of the defendant Partain, as aforesaid, is wilful and malicious.

The complaint prays in substance that rule nisi issue, that the defendant Partain be enjoined and restrained from interfering with Member Maddox in the discharge of his duties as a member of the board and from entering his office; and that he be awarded actual damages together with a stated sum as punitive damages.

Thereupon, the trial court entered an order temporarily restraining and enjoining the defendant Partain from preventing the plaintiff Maddox from entering his office as a member of the board.

By amendment the plaintiff made the following additional allegations; that on January 14, 1971, at 9:30 a.m., Member Maddox, accompanied by his attorney, went to his office at the board for the purpose of resuming his duties as a member; that at 11:15 a.m., the defendant Partain had not yet arrived, and the door to Member Maddox's office remained locked; that at that time he was handed two Executive Orders, both dated January 14, 1971, issued by the succeeding Governor, Jimmy Carter.

One of these orders alleged essentially that the plaintiff Maddox was appointed on April 10, 1969 as a member of the board under a secret agreement, and that such appointment was illegal; that said appointment was in violation of law and that he was not entitled to it; that while acting as a member of the board he engaged in other businesses and professions in violation of law and has failed to devote his full time to the duties of said office; that he has ceased to perform its duties; that he tendered his resignation as a member of said Board and that it was accepted; and that therefore, the office was thereby declared vacant.

The other order recited that Richard A. Chappell was thereby appointed as a member of said board for a term beginning that date and ending January 1, 1976 to succeed the plaintiff Maddox, who had resigned.

The amendment makes other allegations which follow: That the appointment of Chappell as his alleged successor is illegal; that Member Maddox's appointment as a member of the board on April 10, 1969, as aforesaid, was not illegal; nor was his subsequent confirmation by the Senate on June 12, 1969 illegal; that he has devoted his full time to his duties as a member of the board; that he has not abandoned his office; that he had not resigned therefrom; that E. J. Calhoun is presently acting as a member of the board and lives at a stated address; that Richard A. Chappell is a resident of a named county; that Member Maddox has not tnedered any resignation to Governor Carter from his position as a member of said board; that there has been no judicial hearing in which it could be determined that Member Maddox had abandoned his office or that he was not devoting his full time to his duties as such member.

The prayers of the amendment are in essence that rule nisi issue; that Calhoun and Chappell be made parties; that they be enjoined and restrained from interfering with him as a member of the board pending an adjudication as to the title to the office; that quo warranto issue to Chappell requiring him to show cause why he should not be ousted from the office as a member of the board; that mandamus issue requiring the defendants Partain and Calhoun to recognize the plaintiff as a member of the board; and that he have general relief.

Thereupon, the trial court entered an order reciting in substance that the defendants Partain and Calhoun show cause why mandamus absolute should not issue requiring them to recognize Member Maddox as a member of the board; and that the defendant Chappell show cause why he should not be removed as a member of said board and why Member Maddox should not remain in office.

It should be pointed out that Mr. Chappell was not served, and was later dismissed as a party to the action.

The defendant Partain filed an answer to the complaint which denied its essential original and amendatory allegations. It avers, among other matters, that the plaintiff Maddox had tendered his resignation to Governor Maddox and that it was subsequently accepted.

The defendant Partain also alleges, as an affirmative defense and counterclaim, that while acting as a member of said board, the plaintiff Maddox engaged in the real estate business in violation of Code §§ 77-503, 77-510 (Ga.L.1943, pp. 185, 186) and Code § 89-501(7) and has ceased to perform the duties of his office, and sought a declaration and judgment in quo warranto that the office claimed by the plaintiff Maddox is vacant.

Also, the defendant Partain filed a motion to dismiss the complaint as amended upon the grounds: (1) that it fails to state a claim upon which relief can be granted in equity, it appearing from the face thereof that the plaintiff Maddox has an adequate remedy in quo warranto; and (2) that it fails to join an indispensible party, to wit, Richard A. Chappell, it appearing from the face thereof that he is indispensible if complete relief is to be accorded in equity or in law between those already parties to the action.

Upon the interlocutory hearing, oral and documentary evidence was introduced.

Member Maddox testified, insofar as necessary to recite here, substantially as follows: that he was first appointed a member of the board on March 7, 1968, to fill an unexpired term...