Stephens v. Reid

Decision Date04 December 1939
Docket Number13079.
Citation6 S.E.2d 728,189 Ga. 372
PartiesSTEPHENS v. REID.
CourtGeorgia Supreme Court

Syllabus by the Court.

1. The phrase 'until the next regular election' as used in Art. 6, Sec. 2, Par. 8 of the constitution of Georgia (Code, Sec. 2-3008), in fixing the tenure of office of the Chief Justice or an Associate Justice of the Supreme Court of the State, who by executive appointment has been named to fill a vacancy for an unexpired term, means until the next election regularly held conformably to law at which the particular class of judicial officers in question may be chosen.

2. The Chief Justice and Associate Justices of the Supreme Court are elected by the people at the same time and in the same manner as the Governor and the Statehouse officers are elected; and the time for holding such elections is the Tuesday after the first Monday in November in the even-numbered years. Constitution, Art. 6, Sec. 2, Par. 8 (Code, Sec. 2-3008), Code, Sections 34-1301, 34-1302, Secs 40-101, 40-501, 40-901, 40-1401, 40-1601.

3. The Act of the General Assembly of Georgia, approved February 24, 1937, Ga.L.1937, p. 712, extablishing a state-wide general election to be held in June 1937 and biennially thereafter, did not create a regular election in which a Chief Justice of the Supreme Court could be elected.

4. One who claims to have been elected Chief Justice of the Supreme Court of Georgia, in a state-wide general election held in June 1937, under the Act of Feb. 24, 1937, Ga.L.1937 p. 712, is not entitled to a commission from the Governor, and could not qualify as Chief Justice, where before such election there existed a vacancy in the office, the unexpired term whereof extended beyond the time when a regular election would be held for the election of judicial officers of that class, and the vacancy had been filled by executive appointment.

Monroe Stephens, of Atlanta, in pro. per.

A. G. Powell, M. F. Goldstein, Jas. N. Frazer, B. D. Murphy, Marion Smith, Jas. K. Rankin, and Carl N. Davie, all of Atlanta, for defendant in error.

HARDEMAN Judge.

Monroe Stephens filed an information in the nature of a quo warranto against Charles S. Reid to contest the latter's right to hold the office of Chief Justice of this Court, an office created by the Constitution of the State. Art. 6, Sec. 2, Pars. 1 and 8 (Code, Secs. 2-3001, 2-3008) [1]. Leave to file having been granted, and a rule having been issued, the case was heard by three Judges of the Superior Courts of the Atlanta Circuit on general demurrer.

By unanimous decision the demurrer was sustained and the information dismissed. The applicant excepted.

The allegations in the information, taken in connection with facts which this court and the court below are required to judicially notice, [2] show the following: Richard Brevard Russell was elected Chief Justice of this court in the regular November election held in 1934, received his commission from the Governor for a term expiring December 31, 1940, qualified by taking the oath of office required by law, and entered upon the performance of his duties. He died on December 3, 1938. Charles S. Reid was appointed by the Governor on December 17th, 1938, to fill the vacancy caused by the death of the late Chief Justice, was commissioned for the unexpired term, and from that time continuously has served as the incumbent in that office.

On June 6, 1939, an election was held in the State under an Act of the General Assembly, approved February 24, 1937, Ga. Laws 1937, p. 712. [3]

The contentions made by the relator may be stated as follows: The death of Chief Justice Russell created a vacancy in that office; by the language of the constitution, if the vacancy causes an unexpired term (as, admittedly it did in the instant case), the same shall be filled by executive appointment, and the person so appointed shall hold his office until the next regular election, and until his successor for the balance of the unexpired term has been elected and qualified; that as the Act of February 24, 1937, created and established a state-wide general election, to be held in June, 1937, and biennially thereafter, the relator was authorized to become a candidate for the office in question in the election of June, 1939, and having received a plurality of the votes cast for the office of Chief Justice, he was legally elected, and is now entitled to the office. Stated differently, the plaintiff's contention is that the words 'next regular election', as used in the clause of the constitution which provides for filling vacancies in the office of Chief Justice and Associate Justices of the Supreme Court, necessarily and always mean the next general election in point of time that may be held after the vacancy occurs.

It appears from an exhibit attached to the petition that only 1,689 votes were cast in the whole State for this office, 814 for Stephens and the remainder for eight other persons, including Reid, for whom four votes were cast. The exhibit further showed that altogether more than 30,000 voters participated in that election, including 30,214 persons who voted in the election of Solicitor General for the Brunswick Circuit. It is not alleged that Reid was a candidate in the June election.

The demurrer of the respondent contained four grounds, though only two questions of law are presented by them. The first ground is the usual one, that no cause of action is stated; the second and third are merely elaborations of the first, and add that if the Act of February 24, 1937, establishing state-wide general elections to be known as the 'June General Election' should be construed as providing an election for filling vacancies in the office of Chief Justice of this court, it would be violative of Article VI, Section II, Paragraphs IV and VIII of the Constitution (Code, Sections 2-3004, 2-3008). The fourth and last ground urges that the court should take judicial cognizance of the fact that no election was held in June, 1939, to fill the unexpired term of the late and lamented Chief Justice Russell. Under our view of the controlling questions of law made by the first ground of the general demurrer, it becomes unnecessary to pass in specific terms upon other grounds.

1, 2. Of all the States of the American Union, for seventy years after statehood, Georgia alone had a judicial system, without an appellate court for the correction of errors. The first three constitutions, of 1777, 1789 and 1798, made no provision for any review of judicial decisions except for the grant of one new trial before a special jury in the county where the action originated. Ten years elapsed after the adoption of an amendment to the constitution of 1798 authorizing the court to be established, before the legislative branch of the government enacted a law to carry the amendment into effect. Ga.L.1834, p. 66; Ga.L.1835, p. 49; Ga.L.1845, p. 18. Since the court was organized in 1845 there have been four other constitutions of force in the State, the constitutions of 1861, 1865, 1868, and 1877. Therefore, this court has existed under five different constitutions. Various methods of selection have prevailed under the several constitutions. Originally the court consisted of three judges elected by the legislature for such term of years as were prescribed by law, and they continued in office until their successors were elected and qualified. They were removable by the Governor on the address of two-thirds of both branches of the General Assembly, or by impeachment and conviction thereon. Under the constitution of 1861 the Supreme Court consisted of three judges who should be appointed by the Governor, with the advice and consent of two-thirds of the Senate, for such term of years as should be prescribed by law, and they were to continue in office until their successors should be appointed and qualified. They were removable in the same manner as under the constitution of 1798, as amended in 1835. The constitution of 1865, art. 4, § 1, par. 2, provided for a court of three judges who should be elected 'by the general assembly for such term of years, not less than six, as should be prescribed by law.' The provisions as to how they should be removed were the same as in the constitutions of 1798 and 1861. The Article of the Constitution of 1868 establishing the Judicial Department (Art. V) provided (Section 9) that the judges of the Supreme and superior courts should be appointed by the Governor. As to method of selection, it is sufficient in this case to consider only the provisions of the present constitution. When this constitution was adopted by the people in 1877, Art. VI provided for the judicial system. The Judges, designated in that instrument as Justices, were to be elected by the General Assembly of the State every two years beginning with the session in 1880, and the term of each was fixed for six years in such a manner that the terms of no two Justices should expire at the same time. Art. VI, Sec. II, Par. IV, contained this language: 'Appointments to fill vacanies shall only be for the unexpired term or until such vacancies are filled by elections agreeably to the mode pointed out by this Constitution.' This necessarily meant elections by the General Assembly of the State, as there was no provision at that time for election of the Justices by the people; and Art. VI, Sec. XII makes this clear. The Governor appointed, but his appointee served only 'until the General Assembly shall convene.'

By an amendmenty proposed by the General Assembly of Georgia on December 6, 1895, and ratified at an election held on October 7, 1896, Art. VI, Sec. II was amended by adding a new paragraph thereto to be known as paragraph VIII, and this amendment was made effective by an Act approve...

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3 cases
  • Clark v. Deal
    • United States
    • Georgia Supreme Court
    • April 26, 2016
    ...(1943) (the Governor's right to appoint contemplates vacancies that occur within the term; an unexpired term);2 Stephens v. Reid, 189 Ga. 372, 377–379, 6 S.E.2d 728 (1939) (by 1896, it was the goal of the legislature to have judges elected by the people; only vacancies which caused an unexp......
  • Wood v. Arnall
    • United States
    • Georgia Supreme Court
    • December 4, 1939
    ...different constitutional provisions and have no bearing upon the question now presented. See reference to these cases in Stephens v. Reid, 189 Ga. 372, 6 S.E.2d 728. contended, among other things, that his appointment was fixed by the constitution for the whole remainder of the unexpired te......
  • Copland v. Wohlwender
    • United States
    • Georgia Supreme Court
    • May 3, 1944
    ...constitution for election of Governor.' This excluded the June election there under consideration. The office under consideration in Stephens v. Reid, supra, the office of Chief Justice of the Supreme Court of Georgia. This court said [189 Ga. 372, 6 S.E.2d 734]: 'As we have pointed out, if......
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