Turner v. Wilburn, s. 16860, 16861.

• Decision Date: 14 November 1949
• Docket Number: Nos. 16860, 16861.,s. 16860, 16861.
• Citation: 56 S.E.2d 285,206 Ga. 149
• Parties: TURNER. v. WILBURN. WILBURN . v. TURNER.
• Court: Georgia Supreme Court

56 S.E.2d 285

206 Ga. 149

TURNER.

v.WILBURN.

WILBURN .

v.TURNER.

Nos. 16860, 16861.

Supreme Court of Georgia.

Nov. 14, 1949.

Joe E. Palmer, Sr., filed an information praying that a writ of quo warranto issue against W. Eugene Wilburn to show cause why defendant should not be ousted as a member of the State Board of Pardons and Paroles.

The Superior Court, Macon County, W. M. Harper, J., granted a motion for nonsuit and overruled respondent's demurrer to the petition, and both parties brought error.

The Supreme Court, Almand, J., reversed the judgment on the cross-bill of exceptions and dismissed the main bill and held that quo warranto was not the proper remedy to determine whether there had been an act of forfeiture of the office.

Syllabus by the Court，.

(a) In the absence of constitutional or statutory provisions as to the eligibility and qualifications of members of the State Board of Pardons and Paroles, one otherwise eligible is not rendered ineligible to such office, or disqualified from serving as a member of such board, because at the time of his appointment and while serving on the board he was engaged in farming, in the business of banking, and was a member of the State Democratic Executive Committee.

(b) Where a statute enumerates the powers and duties of a member of the State Board of Pardons and Paroles, and provides that such member, while serving on such board, shall not do certain acts, and is silent as to what the penalty shall be upon his doing the acts prohibited, a demurrer to an information in the nature of quo warranto, seeking to oust the member on the ground that he was ineligible and disqualified because he was engaged in the prohibited acts, should have been sustained.

Samuel E. Tyson, Augusta, Randall Evans, Jr., Thomson, for plaintiff in error.

Eugene Cook, Atty. Gen., B. D. Murphy, Deputy Asst. Atty. Gen., M. H. Blackshear, Jr., Asst. Atty. Gen., Claude Shaw, Deputy Asst. Atty. Gen., E. L. Forrester, Leesburg, Jared J. Bull, Oglethorpe, A. C. Felton III, Sidney Moore, John S. Averill, Jr., Montezuma, for defendant in error.

ALMAND, Justice.

Joe E. Palmer, Sr., as a citizen and taxpayer, filed an information praying that the writ of quo warranto issue against W. Eugene Wilburn, that said Wilburn be required to show cause why he should not be ousted as a member of the State Board of Pardons and Paroles, and that said office as occupied by him be declared vacant. It was alleged that the said Wilburn was not entitled to perform the duties and functions of a member of the State Board of Pardons and Paroles, and had no title to such office as a member, because he was ineligible to become a member of said board on December 1, 1948, and had so conducted himself since said date as to render him ineligible and disqualified, and "to require his resignation" from said board, because prior to December 1, 1948, and at the time of the filing of the information, said Wilburn has Been and was (a) a member of the State Democratic Executive Committee of Georgia, (b) engaged in the business of farming, and (c) engaged in the business of banking.

To this information, the respondent filed general and special demurrers. On June 14, 1949, the trial court overruled all of these demurrers. Exceptions pendente lite were filed by the respondent, assigning error on said order. Subsequently the case came on for trial before the court and a jury, and after the introduction of evidence by the plaintiff, the court, on motion of the respondent, entered a judgment of nonsuit. The plaintiff thereupon filed a bill of exceptions, in which error is assigned on an order of the court overruling a motion of the plaintiff to disqualify certain named parties as attorneys for the respondent, and on the order granting the motion for a nonsuit. These assignments of error are before this court on a main bill of exceptions, in case No. 16860.

There is also before the court, as a crossbill of exceptions, case No. 16861, wherein the respondent assigns error on the overruling of his demurrers to the petition.

(a) On September 12, 1949, subsequent to the date on which the trial judge entered his order overruling the demurrers of the respondent, this court, in McLendon v. Everett, 205 Ga. 713, 55 S.E.2d 119, 121, held that W. E. Wilburn, respondent here, at the time of his appointment as a member of the State Board of Pardons and Paroles was not ineligible for appointment, nor did he, after assuming the duties of the office, forfeit his office, (a) by reason of being a member of the State Democratic Executive Committee of Georgia, or (b) because of being engaged in the business of banking, or (c) because of being engaged in the business of farming. It was there held that neither the provisions of the Constitution of 1945, art. 5, sec. 1, par. 11, Code, Ann. § 2-3011, creating the State Board of Pardons and Paroles, nor the act providing for the powers and duties of the board, Ga. L.1943, pp. 185-195, Code Ann.Supp. §§ 77-501 to 77-532, make any provision for "or...