Patten v. Miller
| Decision Date | 10 April 1940 |
| Docket Number | 13217 |
| Citation | 8 S.E.2d 757,190 Ga. 123 |
| Parties | PATTEN et al. v. MILLER. PATTEN v. MILLER. 13218 |
| Court | Georgia Supreme Court |
[Copyrighted Material Omitted] [Copyrighted Material Omitted]
Syllabus by the Court.
1. The law contemplates that the State Highway Board shall consist of three members, one of whom shall be chairman. The law prescribes fixed terms for these offices, and does not confer upon the Governor the power of removal with respect to them.
(a) The Code, § 89-101(4) provides: According to this statute, Federal offices, the holding of which will render a person ineligible, do not include the office of postmaster or other offices expressly excepted.
(b) Where the Governor undertook to declare vacancies in the offices of a member and chairman of the State Highway Board, for ineligibility of the incumbent because of his holding a Federal office, but the order recited only that the incumbent held an office of profit or trust under the Government of the United States, without stating what Federal office the incumbent held, the order did not show ineligibility as claimed, since, for aught that appears, the Federal office, if held, might have been one of the excepted offices.
(c) The Code also provides, § 89-501(7), that an office is vacated where the incumbent abandons it or ceases to perform its duties, or (2) by resignation when accepted. But under this law a mere charge of misconduct in office on the part of the incumbent does not show abandonment; nor may the Governor, against the will of the incumbent, declare a vacancy upon any theory of abandonment until the fact is ascertained in a judicial proceeding.
(d) While an office is vacated 'by resignation when accepted,' yet where an order of the Governor contained a specific recital of facts to show a resignation, and it appeared that the facts did not constitute a resignation in law, a declaration in his order that 'the resignation aforesaid * * * is hereby accepted' does not show a vacancy by resignation accepted.
(e) A recital that a named officer on different occasions 'has stated to me, as Governor of Georgia, that if I desired to accept his resignation I could do so, and that he would 'go home," does not show a resignation, but merely discloses past offers to resign if the Governor then so desired. The statements so ascribed to the officer were not continuing offers, conditional or otherwise, and did not authorize future action thereon by the Governor.
(f) The provision of the constitution (Code, § 2-2614, Const. art. 5, § 1, par. 14) to the effect that when any office shall become vacant by death, resignation, or otherwise, the Governor shall have power to fill such vacancy, confers no power to create a vacancy by any declaration or judgment that one exists; there must be an actual vacancy before the power or duty of filling it arises.
(g) An actual vacancy being a condition precedent to the authority or jurisdiction to appoint, the question of its existence is subject to inquiry, at the instance of the person whose tenure is challenged, should he desire to make an issue of it in a judicial proceeding.
(h) On application of the foregoing rulings, held, that in the instant suit for the writ of mandamus, by a person claiming to hold office as a member and chairman of the State Highway Board, instituted against other persons for the purpose of requiring recognition of the plaintiff in such official capacities, the petition, when considered with an executive order of which the court takes judicial cognizance, did not show that the tenure of the plaintiff had been terminated by any of the recited causes.
2. The allegations of the petition, considered with facts judicially noticed, were sufficient to show that the plaintiff is still a member and chairman of the State Highway Board; that it is the duty of two of the defendants as members of the board to recognize him as such member and chairman; and that a third defendant who, according to the petition, is claiming a membership, is not a lawful member of such board.
3. One ground of the demurrer was: 'Petition as a whole is demurred to specially, for the reason that it is too vague and indefinite to support a mandamus absolute, in that it is not alleged which of the defendants are under the legal duty of recognizing the plaintiff as a member and chairman of the State Highway Board.' Held, that the petition as a whole was not so vague and indefinite that it failed to set forth a cause of action; and the court did not err in overruling this ground of demurrer, aimed as it was at the petition in its entirety, and not at any particular part of it.
4. The petition showed sufficient cause for issuance of the writ of mandamus to require the defendants P. and W., as members of the board, to recognize the plaintiff as a member and chairman, and was not subject to demurrer on the ground that a suit for the writ of quo warranto against the defendant G. was the plaintiff's remedy. Nor was there merit in any of the other grounds of demurrer, either general or special.
5. An allegation in the defendants' answer that vacancy existed in the offices claimed by the plaintiff, 'occasioned by the fact that the plaintiff, who had at one time acted as a member of said board, had resigned and his resignation had been accepted by the Governor,' was subject to special demurrer on the ground that it did not show when and in what manner, whether expressly or by implication, it was claimed the plaintiff had resigned. An allegation in the answer that the plaintiff had abandoned his office and ceased to perform the duties thereof was subject to special demurrer on the ground that it was a mere conclusion of the pleader.
6. The allegation in the answer that a vacancy existed in the offices claimed by the plaintiff, because he was at and before accepting such offices a member of the Advisory Committee of the Atlanta Agency of the Reconstruction Finance Corporation, failed to show ineligibility as claimed, since a membership in such committee would not constitute an office of profit or trust under the Government of the United States.
(a) Where in a suit for the writ of mandamus the court assumes jurisdiction for a purpose for which the writ is appropriate, such as determining the right of possession to a public office and to require recognition of the plaintiff therein, it may incidentally adjudicate title to the office as between the plaintiff and a rival claimant who is duly made a party defendant.
(b) Under the allegations of the petition and admissions in the answer, considered with facts judicially noticed, the case did not involve any issue of fact for determination by a jury.
(c) The court did not err in any of the antecedent rulings, nor in rendering final judgment in favor of the plaintiff granting a mandamus absolute, directing two defendants named in the judgment to recognize the plaintiff as a member and chairman of the State Highway Board, and to accord him the opportunity to perform the duties incident to these offices.
7. The rulings made above in the mandamus case will render it unnecessary to decide any question raised in a separate writ of error in a quo warranto case between the same plaintiff and another person who was made a party defendant in each case, and consequently such writ of error in the quo warranto case will be dismissed.
Powell, Goldstein, Frazer & Murphy and MacDougald, Troutman & Arkwright, all of Atlanta, C. A. Williams, of Alma, A. N. Durden, of Albany, H. W. Nelson, of Adel, Will Stallings, of Soperton, and Copeland & Dukes, of Valdosta, for plaintiffs in error.
James A. Branch and Thos. B. Branch, Jr., both of Atlanta, J. P. Knight, of Nashville, S. F. Memory, of Blackshear, and Franklin & Eberhardt, of Valdosta, for defendant in error.
W. L. Miller filed a suit for the writ of mandamus, naming as defendants Lawson L. Patten, Herman Watson, and James L. Gillis. Under the law there may be only three members of the State Highway Board. The plaintiff alleges that he is a member and chairman, and that the defendant Patten claims to be a member and chairman, and that the defendants Watson and Gillis claim to be members, respectively.
The object of the suit was to require recognition of the plaintiff as a member and chairman. The defendants demurred generally and specially to the petition, which demurrer the court overruled. The plaintiff demurred specially to parts of the defendants' answer, which demurrer the court sustained, with leave to amend. After an amendment to the answer was filed and allowed, the court entered final judgment on the pleadings in favor of the plaintiff, to which judgment and the antecedent rulings the defendants excepted. The following is a detailed statement of the petition, with response of the defendants shown in brackets:
'1. The defendants herein are the following: (1) Lawson L. Patten, who is a resident of said [Lanier] County; (2) Herman Watson, who is a resident of Paulding County, Georgia; and (3) James L. Gillis, who is a resident of Treutlin County, Georgia. [Admitted.]
'2. Petitioner was duly appointed as a member of the State Highway Board of Georgia and as chairman of said board on the 3rd day of March, 1937, by the Governor of the State of Georgia, and his appointment was duly...
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