Templeman v. Jeffries
| Decision Date | 12 June 1931 |
| Docket Number | 8200. |
| Citation | 159 S.E. 248,172 Ga. 895 |
| Parties | TEMPLEMAN v. JEFFRIES, Ordinary. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
County attorney, if in existence in county, must be appointed by ordinary on commission to determine guardianship for incompetent person; county commissioners of Fulton county impliedly have power to appoint county attorney; ordinary held required to appoint county attorney of Fulton county provided by county commissioners on commission to determine guardianship for incompetent person (Parks' Ann. Civ. Code Supp. 1922, § 3106 (a), Parks' Ann. Civ Code Supp. 1926, § 855 (19); Acts 1880-81, p. 508, 546; Const. art. 7, § 65, par. 2; Civ. Code 1910, § § 383, 385).
Under the Act of August 20, 1918 (Acts 1918, p. 162), it is the duty of the ordinary to appoint, upon the commission therein provided for, the county attorney if there is such an officer in the county. Under the act creating the board of county commissioners of Fulton county, and under the acts defining their powers and duties, that body by implication is empowered to appoint a county attorney for Fulton county; and that body in pursuance of such power having, by resolution duly spread upon its minutes, designated a county attorney fixed his term of office and salary, it was the duty of the ordinary to appoint such county attorney upon this commission.
County commissioners may exercise implied power to appoint county attorney by resolution spread on minutes; relation between county and county attorney rests on appointment impliedly authorized by Legislature, not on written contract (Civ. Code 1910, § 386).
The exercise of the implied power conferred upon the county commissioners to designate a county attorney and to fix his term and salary may be effectually executed by a resolution of the county commissioners, duly passed and spread upon their minutes. Such transaction does not fall within the purview of section 386 of the Civil Code of 1910, which requires all contracts entered into by the ordinary with other persons in behalf of the county to be in writing and entered on their minutes. The relation between the county and the county attorney does not rest upon contract, but arises from appointment impliedly authorized by legislative enactment, the powerto designate such county attorney coming from the legislature, and not from contract between the commissioners and such officer.
Act providing for appointment of guardian by commission is to be strictly construed; guardian cannot be appointed for estate of person nor person committed to sanitarium except on unanimous return of commission appointed in statutory manner ordinary is without jurisdiction to appoint guardian unless commission, to determine necessity for guardianship, is duly constituted as required by law; prohibition lies to enjoin ordinary from appointing guardian where ordinary was without jurisdiction to appoint guardian by reason of illegal constitution of commission appointed to determine necessity for guardianship (Parks' Ann. Civ. Code Supp. 1922, § 3106 (a); Civ. Code 1910, § 5458).
The act of 1918, supra, is to be strictly construed. No guardian can be appointed for the estate of a person, nor can such person be committed to the sanitarium, except upon the unanimous return of the members of the commission appointed in the manner thereby prescribed. Unless there is a duly constituted commission as required by this act and the unanimous return of the members thereof as thereby required, the ordinary is without jurisdiction to act in the matter. The ordinary being without jurisdiction to appoint a guardian for the person and property of the person for whom guardianship was sought, by reason of the illegal constitution of the commission, and the consequent lack of a valid return by a legal commission, the writ of prohibition will lie to enjoin the ordinary from appointing a guardian for the person and property of the party for whom guardianship is sought.
Failure to specify class of mental defectives in which falls person for whom guardianship or commitment is sought does not render return of commission in proceedings void; return of commission in lunacy proceedings need only determine whether person should have guardian appointed or be committed to sanitarium (Parks' Ann. Civ. Code Supp. 1922, § 3106 (a).
The return of a commission in a lunacy proceeding is not void for the reason that it does not specify the class of mental defectives in which falls the person for whom guardianship or commitment tothe sanitarium is sought. The act of 1918 requires only that the commission in its return shall specify whether such person shall have a guardian appointed for his person and property, or whether he should be committed to the sanitarium. In the present case this requirement was complied with; and the writ of prohibition could not issue to enjoin the ordinary from appointing a guardian for the person and property of the party whose mental capacity was being inquired into, upon the ground that the return was void because it did not specify in what class of mental defectives such person fell.
In view of the rulings above, it becomes unnecessary to consider the question whether there was a solicitor of any city court in Atlanta who should have been appointed to serve on such commission if there had been no county attorney.
Applying the principles announced in the first, second, and third divisions of the opinion, the trial judge erred in denying the writ of prohibition.
Error from Superior Court, Fulton County; E. D. Thomas, Judge.
Prohibition by W. E. Templeman against T. H. Jeffries, Ordinary, etc. Judgment for defendant, and plaintiff brings error.
Reversed.
King & Partridge, of Atlanta, for plaintiff in error.
B. L. Milling and Mitchell & Mitchell, all of Atlanta, for defendant in error.
Upon the petition of Duffell, in which he alleged that Templeman was a person of unsound mind and that a guardian should be appointed for his person and property, the ordinary appointed a commission consisting of two physicians and an acting solicitor general of the Atlanta circuit, to examine Templeman by inspection and to hear and examine witnesses under oath, if necessary, as to his condition, and to make return of such examination and inquiry to the ordinary, specifying in the return under which class they found Templeman to be. The commission thus appointed made their return in which they found that a guardian should be appointed for the person and property of Templeman.
Thereupon Templeman filed in Fulton superior court his petition in which he sought for the writ of prohibition to prevent the ordinary from appointing a guardian for his person and property, upon the ground that the above commission was not legally constituted. He based his attack upon the commission upon the ground that Charles B. Shelton, Esq., was the county attorney of Fulton county, and should have been appointed a member of the commission, and that, if he was not such county attorney as contemplated by the law under which the commission was appointed, there was a solicitor of a city court in Fulton county, to wit, John S. McClelland, Esq., solicitor of the criminal court of Atlanta, who should have been appointed on the commission. A further ground of the petition was that the return of the commission did not specify in what class of insane or mentally defective persons the commission found him to be. In his answer to this petition the ordinary set up that there was neither a county attorney in Fulton county, nor a solicitor of a city court in said county, and that for this reason neither one of said officers could be appointed upon the commission to examine Templeman. The ordinary further alleged that the return of the commission was valid. On the hearing it appeared that the county commissioners of Fulton county had, by an order passed on January 2, 1930, and spread upon their minutes, appointed Charles B. Shelton, Esq., county attorney for Fulton county for the year 1930, or at their will and pleasure; and by the same order fixed his salary. Upon the facts appearing as above stated, the trial judge refused to grant the writ of prohibition, and to this judgment the petitioner excepted.
1. The first question for decision is whether there was a county attorney for the county of Fulton at the time the commission was appointed to examine Templeman, who should have been appointed on the commission. The proceeding in this case was under the Act of August 20, 1918. This act provides that "upon the petition of any person, on oath, setting forth that another is liable to have a guardian appointed," the ordinary "shall issue a commission directed to three reputable persons, two of whom shall be practicing medical physicians in good standing, said physicians to be residents of the county, if that number reside therein, and the county attorney or solicitor of any city court located in said county, and if no county attorney or solicitor of said city court, the solicitor-general of the circuit or some attorney of the county appointed by him, requiring them to examine by inspecting the person for whom guardianship or commitment to the sanitarium is sought," etc. Acts 1918, p. 162, § 1, 9 Park's Code Supp. 1922, § 3106 (a). Under this law, if there was a county attorney in Fulton county at the time this commission was appointed, such county attorney should have been appointed as a member thereof. As far as we have been able to discover, there is no general statute in this state which provides for the appointment, election, or employment of county attorneys, except in one instance, and that is where a county-manager form of government is established in any county, in which case the board of...
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