Ross v. Jones

• Court: Georgia Supreme Court
• Writing for the Court: HILL, J.
• Citation: Ross v. Jones, 151 Ga. 425, 107 S.E. 160 (Ga. 1921)
• Decision Date: 14 April 1921
• Docket Number: 2436.
• Parties: ROSS v. JONES.

107 S.E. 160

151 Ga. 425

ROSS v. JONES.

No. 2436.

Supreme Court of Georgia

April 14, 1921

Syllabus by the Court.

The Legislature may pass an act to become effective at some future date after its passage and approval by the Governor. Consequently, where the Legislature passed an act which was approved on August 17, 1920 (Acts 1920, p. 96), reciting in section 1 that "upon the passage and approval" of the act there should be appointed by the Governor an additional judge of the superior courts of the Macon circuit for a term commencing on the date of the appointment, etc and, where by section 11 of the act it was provided that "This act shall not go into effect until November 1 1920," the act became effective on the latter date; and where on November 1, 1920, the appointee qualified as judge, and a commission was issued to him by the Governor, such qualification and commission authorized the judge to perform the duties of the office until his successor was duly elected and qualified in the manner prescribed by law. The word "upon," as used in the first section construed in connection with section 11 of the act, means "after."

Thirty days not having intervened between November 1, 1920, and the next general election after the appointment of an additional judge for the Macon circuit (November 2, 1920), it was competent for the Governor, on November 1, 1920, to issue a commission to the appointed and qualified judge, authorizing him to discharge the duties of the office until January 1, 1923, as provided by the act of 1920.

The act of 1920 (Acts 1920, p. 96) is not unconstitutional as being repugnant to article 6, § 3, pars 1-3, of the Constitution of Georgia (Civ. Code 1910, §§ 6507, 6508, 6509), or to article 5, § 1, par. 14 (Civ. Code 1910, § 6483), which relate to the election and terms of office of judges of the superior court, and how vacancies in such office are to be filled.

Error from Superior Court, Bibb County; H. A. Mathews, Judge.

Petition for leave to file information in the nature of quo warranto by John P. Ross against Malcolm D. Jones. Petition dismissed, and the relator brings error. Affirmed.

J. L. Anderson, of Atlanta, and John P. Ross, of Macon, for plaintiff in error.

O. A. Park, Warren Grice, Harry Strozier, P. F. Brock, and A. L. Miller, all of Macon, for defendant in error.

HILL J.

John P. Ross filed his petition for leave to file an information in the nature of a quo warranto, to inquire into the right of Malcolm D. Jones to hold the office of additional judge of the superior courts of the Macon circuit. The respondent filed both an answer and a general demurrer to the information. The trial judge, after a hearing on the information and demurrer, dismissed the proceeding. The relator excepted to the judgment, and brings a writ of error to this court. The question is whether the case was properly decided on the issue raised by the demurrer to the information. The record shows, in substance, the following facts: The Legislature in 1920 passed an act the caption of which is as follows: "An act to carry into effect an amendment to the Constitution of this state approved August 22, 1905, and duly ratified, authorizing the Legislature to add one or more additional judges of the superior court for the Macon circuit; to regulate the manner in which the judges of said Macon circuit shall dispose of the business thereof; to fix the time at which the term of said additional judge shall begin, to provide for his appointment and for his compensation; and for other purposes." Acts 1920, p. 95.

The act was approved by the Governor on August 17, 1920. Section 1 of the act, omitting the formal part, is as follows:

"That upon the passage and approval [italics ours] of this act there shall be appointed by his excellency, the Governor, an additional judge of the superior court for the Macon circuit for a term of office commencing on the date of such appointment and continuing until the first day of January, 1923, and until his successor shall have been duly elected and qualified in the manner now provided by law for the election of judges of the superior courts."

The act contains 12 sections. The twelfth section repeals conflicting laws. The eleventh section is as follows:

"Be it further enacted, that this act shall not go into effect until November 1, 1920."

The other sections of the act refer to the election of the successors to the additional judge appointed by the Governor, etc., and are not material to the consideration of the questions presented for decision in this case.

On September 25, 1920, the Governor passed an order appointing Malcolm D. Jones, the respondent, judge of the superior courts of the Macon circuit. In the order it was provided, "This appointment to be effective from this date and until January 1st, 1923." Malcolm D. Jones took the oath of office, and was commissioned by the Governor on November 1, 1920, as judge of the Macon circuit for a term expiring December 31, 1922, and has since that time been holding and discharging the duties of the office. The information alleges that the relator, having the necessary qualifications for the office, was duly elected to the office in question at the regular general election held for members of the General Assembly on Tuesday after the first Monday in November, 1920 (November 2, 1920), and that after the 1st day of January, 1921, he offered to qualify for said office and to assume its duties and responsibilities; that he applied to the Governor to have the oath of office administered by dedimus potestatem to the ordinary of Bibb county, and to issue and have delivered to him a commission as judge of the superior courts of the Macon judicial circuit, under the act of August 17, 1920, for the unexpired term beginning January 1, 1921; that the Governor declined to qualify and commission him, on the ground that he had appointed Malcolm D. Jones to the office for a term ending December 31, 1922, and had issued a commission to him accordingly; that although the relator was duly elected to the office under the terms and provisions of the Constitution of Georgia, and was entitled to the office and to discharge its duties and enjoy its emoluments from and after December 31, 1920, for a term of four years, the respondent held and retained the office, and refused to surrender it to the relator. It is insisted by the relator, on argument here, that "upon the passage and approval" of the act creating the additional judgeship in the Macon circuit, viz. on the 17th day of August, 1920, the office was created, and a vacancy existed therein ipso facto, which it was the duty of the Governor then, or within a reasonable time, to fill.

It has been held that the Legislature can pass an act to take effect at a future date. Grinad v. State, 34 Ga. 270; and see 25 R.C.L. 797, 799,§§ 46, 48, and cases cited; also Schneider v. Hussey, 2 Idaho (Hasb.) 8, 1 P. 343; Harding v. People (10 Colo. 387) 15 P. 727 (6); State v. Bemis, 45 Neb. 724, 64 N.W. 348 (8); Goree v. Greenwood, 93 S.C. 312, 76 S.E. 705; Patterson Foundry & Mach. Co. v. Ohio River Power Co., 99 Ohio St. 429, 124 N.E. 241. The controlling question is whether the act took effect on the date of its approval, August 17, 1920, or whether it took effect upon November 1, 1920, as provided in section 11 of the act. The word "upon," as used in the first section of the act, has many meanings; and we cannot agree with learned counsel for the relator that the word "upon" as here used has the exclusive meaning of "immediately after," or within a "reasonable time after," in view of section 11 of the act, construed in connection with section 1. "Upon" is used to designate or denote the time at which anything happens; it may mean before, after, or simultaneously with the fact to which it relates, and is often employed in the sense of after contemporaneously with, or shortly after, as soon as, at, or at the time of, or after, or when." 29 Cyc. 1484, 1485; 3 Words and Phrases, Second Series, 723. "The word 'upon' may mean at a certain time or before or after it." 6 Words and Phrases, 4960, 4961. While there are several definitions of the word "upon," the one giving it the meaning of "after" is just as reasonable as any. To give the word "upon," as used in the first section of the act, the meaning of "immediately after," or within a "reasonable time after," would make that section conflict with section 11 of the act; whereas, in the view we take of the two sections construed together, there is no conflict as to the time when the Legislature intended the act of 1920 to become operative. Section 11 is the specific declaration as to the time when the act goes into effect; whereas, under the construction we have given the word "upon" in section 1 of the act, it means "after" the approval of the act, and November 1 being "after" August 17, 1920, the time of the approval of the act, we hold that it was the intention of the Legislature that the...