Ross v. Williamson

• Decision Date: 31 July 1871
• Citation: 44 Ga. 501
• Parties: ANDREW M. ROSS, plaintiff in error. v. JOHN WILLIAMSON,defendant in error.
• Court: Georgia Supreme Court

44 Ga. 501

ANDREW M. ROSS, plaintiff in error. v. JOHN WILLIAMSON, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1871.)

Quo Warranto. Officer's books, etc. Before Judge Schley. Chatham county. March, 1871.

Williamson averred that, in December, 1870, he was duly elected treasurer of said county, had been commissioned by the Governor as such treasurer, and qualified by taking the oath, and giving the bondrequired by law, yet Ross, his predecessor, refused to deliver him the books, etc., of the office. *He prayed that Ross show cause why he should not be compelled to deliver the books, etc. Ross demurred to this petition, upon the ground, that it did not aver that, at the date of said election, Williamson was eligible to said office. The demurrer was overruled.

Ross answered that Williamson was not duly elected to said office; that he was ineligible because he had been a Justice of the Inferior Court of Chatham county, prior to the war, and taken an oath to support the Constitution of the United States, and afterwards engaged in the rebellion, and, therefore, the votes for him were not to be counted; that Williamson did not take the oath and give the bond in the time prescribed by law, and Ross rightfully holds said books, etc., because his successor has not been legally qualified. He further answered that Williamson's sole remedy was quo warranto.

The Judge ordered the books, etc., to be delivered to Williamson. Ross asked for a supercedeas for twenty-four hours, till he could sue out his writ of error to.this Court, but the Judge refused to grant it. The said rulings of the Judge are assigned as error.

A. W. Stone, for plaintiff in error.

Hartridge & Chisolm, for defendant.

McCAY, Judge.

1. This is a proceeding, under sections 161, 166 of the Revised Code, to require the delivery of the books and papers of an office to a newly elected and commissioned officer, by the former incumbent. It is not intended as a mode of trying the right of either party to the office. That, by the long established practice of the country, is by writ of quo warranto. These provisions of the Code look solely to the retention of the books, papers, and other property of an office, by an incumbent against the newly elected and commissioned officer.

The first section declares that when any office is "vacated, " *etc. The record and the law of the land shows that the office, in this case, was vacated by the expiration of the term of the incumbent. He only holds after that expiration as the ad interim possessor until his successor is elected and qualified. The petition shows that the petitioner has been elected and commissioned. That is all that is required by the statute. The word "qualified, " used in the first section, clearly can only mean "sworn in, " and thisis the sense in which it is commonly used in the Constitution and laws: Constitution, Article 3, section 1, paragraph 2. Indeed, 1 think this is the universal use of it, as applied by law to public officers. The commission only issues on the qualification, and hence is evidence of...