Thompson v. Talmadge

• Court: Georgia Supreme Court
• Citation: Thompson v. Talmadge, 201 Ga. 867, 41 S.E.2d 883 (Ga. 1947)
• Decision Date: 19 March 1947
• Docket Number: 15797,15792,15798,15802.
• Parties: THOMPSON, Lieutenant Governor, et al. v. TALMADGE. BYARS et al. v. THOMPSON. FULTON NAT. BANK OF ATLANTA v. TALMADGE et al. THOMPSON et al. v. TALMADGE et al.

41 S.E.2d 883

201 Ga. 867

THOMPSON, Lieutenant Governor, et al. v. TALMADGE.

BYARS et al. v. THOMPSON.

FULTON NAT. BANK OF ATLANTA v. TALMADGE et al.

THOMPSON et al. v. TALMADGE et al.

Nos. 15797, 15792, 15798, 15802.

Supreme Court of Georgia

March 19, 1947

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Syllabus by the Court.

1. While the courts have no jurisdiction of purely political matters, or to review actions of the General Assembly done within the powers conferred by the Constitution, yet courts have jurisdiction of all justiciable matters; and questions made in the present cases as to whether the General Assembly had the power to elect a Governor, and as to who has title to that office, are justiciable, and the courts have jurisdiction, which is neither ousted nor impaired by reason of the fact that involved therein are political questions and action by the General Assembly.

2. In 1824 by constitutional provision the General Assembly was divested of its general power to elect a Governor, and that power was retained by the people, where it remains today. The General Assembly was given the conditional power to elect a Governor. A condition precedent to such an election by the General Assembly is a failure of the people to cast a majority of their votes for any person, in which event the General Assembly is given the power to elect one of the two persons having the highest number of votes who are in life and willing to accept election at the time appointed for the General Assembly to elect.

(a) The death of the Honorable Eugene Talmage after his election by the people and before publication of the returns by the General Assembly did not change the duty of that body to declare his election nor authorize the General Assembly to declare by resolution that because of his death no person had a majority of the votes and to elect a Governor.

(b) Accordingly, where in such circumstances the General Assembly undertook to elect another person as Governor, namely, the Honorable Herman Talmadge, such attempted election was a void act, which did not confer upon him any right or title to the office of Governor.

(c) It follows that upon the resignation of Governor Arnall on January 18, 1947, M. E. Thompson, the duly qualified Lieutenant Governor, became vested with full executive powers of this State.

Action by Ellis Arnall, as Governor or the State of Georgia, against Herman Talmadge, for declaratory judgment as to title to office of Governor and injunction against invasion of such office. M. E. Thompson, after resignation of original plaintiff as Governor and the swearing in of M. E. Thompson as Governor, moved to intervene and be substituted as plaintiff. To review a judgment striking M. E. Thompson's motion and amendment thereto, and sustaining a general demurrer to the original petition, Ellis Arnall, as Governor, demurrer to the original petition, Ellis Arnall, as Governor, and M. E. Thompson, as Lieutenant Governor, bring error. The case was argued and submitted together with an action by M. E. Thompson against Grover C. Byars and others for mandamus to require members of the Board of Pardons and Paroles to furnish him certain information, wherein defendants brought error to review an adverse judgment; an action by Fulton National Bank of Atlanta against Herman Talmadge, in interpleader, to determine whether Herman Talmadge or M. E. Thompson was entitled to control disbursement of certain funds, wherein plaintiff brought error to review an adverse judgment; and cross-bill of exceptions by M. E. Thompson and others against Herman Talmadge and others in the interpleader action by the Fulton National Bank of Atlanta.

Judgments affirmed in the action by Grover C. Byars and others against M. E. Thompson, and in the cross-bill by M. E. Thompson and others in the action by Fulton National Bank of Atlanta; judgments reversed in the action by M. E. Thompson, Lieutenant Governor, and others against Talmadge, and in the action by Fulton National Bank of Atlanta against Talmadge.

Ellis Arnall, as Governor of the State of Georgia, filed on January 15, 1947, in the Superior Court of Henry County a petition naming Herman Talmadge as defendant, and seeking a declaratory judgment, and the equitable relief of injunction against an alleged invasion by the defendant of the office of Governor. The petitioner alleged that he was Governor of the State of Georgia, having been elected at the general election in 1942, and having been duly elected, inaugurated and qualified for the term commencing in January, 1943, and that he was then acting as Governor; that under the Constitution of this State he is Governor for a term of four years and until his successor shall be chosen and qualified, and it is his duty to continue to exercise power until a successor is chosen and qualified. He alleged that the defendant was interfering with and seeking without authority to perform the duties of the office of Governor and to transact the business of the State, and had invaded and was occupying the executive quarters at the State Capitol. He alleged that a general election for Governor was held in this State on November 5, 1946, and that Eugene Talmadge was elected to succeed to the office of Governor, having received 143,279 votes, a vast majority of the votes cast; that Eugene Talmadge died on December 21, 1946, before the convening of the General Assembly in January, 1947; that there were certain 'write-in' votes cast in the said general election for Herman Talmadge (675 votes, as shown by 'Exhibit C' Petition of M. E. Thompson) and between 600 and 700 votes were cast for D. Talmadge Bowers and between 600 and 700 votes were cast for James V. Carmichael. He further alleged that after the two houses of the General Assembly had organized and certain proceedings were had, including the canvassing of the returns of the election of November 5, 1946, the General Assembly illegally undertook to elect Herman Talmadge Governor of Georgia and he is claiming to have been so elected.

After the filing of the petition by Ellis Arnall, as Governor, M. E. Thompson, who had been elected Lieutenant Governor in the general election of November, 1946, qualified as such and took the oath of office.

Thereupon Governor Arnall submitted his resignation to the General Assembly, to be immediately effective. Lieutenant Governor Thompson took a further oath as acting Governor, and then filed his motion and intervention in the case which had been instituted by Ellis Arnall, as Governor, and he asked to be substituted as plaintiff as successor in office to Governor Arnall. This motion or intervention was allowed subject to objection and demurrer. Thompson later filed an amendment setting up in effect that Herman Talmadge continued to interfere with his performance of the duties of Governor and his exercise of the executive power. This amendment was allowed subject to objection and demurrer. In it he alleged that in the joint session of the General Assembly certain resolutions were adopted and proceedings had as shown by the respective journals of the two branches, copies of which were attached as exhibits 'A' to 'E,' inclusive, and made a part of the petition. Exhibit 'D' recited: 'Whereas, an election for Governor of the State of Georgia was held on November 5, 1946, and the returns of said election have been opened and published under the direction of the General Assembly on January 14, 1947, and Whereas, it appears that no person had a majority of the whole number of votes cast by virtue of the fact that Eugene Talmadge, now deceased, received the highest number of votes cast, Therefore, be it resolved that the General Assembly proceed immediately to elect a Governor viva voce.'

The exception here is by Ellis Arnall, as Governor, and M. E. Thompson, as Lieutenant Governor, in this case No. 15797, to the judgment striking the motion of M. E. Thompson to intervene and be substituted as plaintiff and the amendment thereto and sustaining the general demurrer to the original petition on certain grounds.

The following cases involving collateral questions were argued together with the case just above mentioned, and it was agreed by all parties that they be decided together, and that all procedural questions were waived:

No. 15792. Grover C. Byars et al. v. M. E. Thompson. In this case M. E. Thompson sought mandamus to require the members of the Board of Pardons and Paroles to furnish him certain information which under the law was required to be furnished to the Governor of this State.

No. 15798. Fulton National Bank of Atlanta v. Herman Talmadge. In this case the bank, as holder of certain funds belonging to the State, sought interpleader to determine whether Herman Talmadge or M. E. Thompson was entitled as chief executive of this State to control the disbursement of such funds.

No. 15802. M. E. Thompson et al. v. Herman Talmadge et al., being a cross bill of exceptions in the case last above named.

No. 15797:

Eugene Cook, Atty. Gen., Victor Davidson and Beverly Irwin, Asst. Attys. Gen., Marion Smith, Harry Baxter, James A. Branch, Thomas B. Branch, Jr., Chas. S. Reid, C. E. Gregory, Jr., and Marshall L. Allison, all of Atlanta, A. B. Conger, of Bainbridge, H. H. Perry, Jr., of Albany, and J. B. Copeland, of Valdosta, for plaintiffs in error.

B. D Murphy, W. G. Grant, Geo. P. Whitman, Winfield Payne Jones, Samuel D. Hewlett and James N. Frazer, all of Atlanta, R. O. Jackson, of McDonough, W. A. Ingram, of Cartersville, Spence M. Grayson, Lewis A. Mills, B. B. Heery and Shelby Myrick, all of Savannah, J. Roy Rowland, of Wrightsville, Joseph D. Quillian, of Winder, Edgar Dunlap and W. P. Whelchel, both of Gainesville, A. M. Zellner, of Forsyth,...