Webb v. Echols

• Decision Date: 11 July 1955
• Docket Number: No. 18995,18995
• Citation: 88 S.E.2d 625,211 Ga. 724
• Parties: Cary H. WEBB v. E. P. ECHOLS et al.
• Court: Georgia Supreme Court

Page 625

88 S.E.2d 625

211 Ga. 724

Cary H. WEBB v. E. P. ECHOLS et al.

No. 18995.

Supreme Court of Georgia.

July 11, 1955.

Syllabus by the Court

1. The act of 1955, Ga.L.1955, p. 2064, which repealed the act of 1943, Ga.L.1943, p. 889, that created the office of Sole Commissioner of Roads and Revenues of Clayton County and simultaneously created a Board of Commissioners of Roads and Revenues of Clayton County of three members and continued the present sole commissioner in office as one of the three-member board until the end of his term of office, did not have the effect of abolishing the office to which the sole commissioner has been elected, in violation of art. 3, § 7, par. 15 of the Constitution of 1945.

2. The assertion that a statute is 'unconstitutional, void and discriminatory,' without specifying the particular provision of what constitution is violated, is too indefinite to raise any question as to the validity of the statute.

S. B. Wallace, Albert Wallace, Griffin, for plaintiff in error.

Edwin S. Kemp, Jonesboro, for defendants in error.

ALMAND, Justice.

The General Assembly in 1943 repealed all former acts relating to Clayton County Commissioners, Ga.L.1943, p. 889, and by a separate act created a Sole Commissioner of Roads and Revenues, and provided for his election, duties, and powers, Ga.L.1943, p. 883. Under that act, B. C. Haynie was in February, 1955, serving as Sole Commissioner of Roads and Revenues. In February, 1955, the General Assembly passed an act, Ga.L.1955, p. 2064, repealing the act of 1943 as amended, and in the same act created a three-member Board of Commissioners of Roads and Revenues, providing for their election, terms of office, powers and duties. The act divided the county into three districts, with one member to be elected by the voters of the county at large from each district. It was provided that the members from the second and third districts should be elected at a special election to be held not less than 15 nor more than 30 days after the approval of the act and that the person (B. C. Haynie, a resident of the first district) serving as Sole Commissioner 'shall be the third member of the board and shall serve as chairman of the three-man board until the end of his present term of office, which expires December 31, 1956,' and receive the same compensation as he was receiving under the prior acts, for the remainder of his term. At the special election, E. P. Echols and E. Tarp George were elected as commissioners for the second and third districts and were installed as such officers.

Thereafter, Carey H. Webb as a citizen and taxpayer of Clayton County, residing in the first district, filed his petition for the writ of quo warranto against Echols and George, seeking to oust them from membership on the board, on the ground that the act of 1955, which created these positions, was unconstitutional and void, (a) because the act abolished the office of B. C. Haynie, contrary to art. 3, § 7, par. 15 of the Constitution of 1945, Code, § 2-1915; and (b) because said act is unconstitutional, void, and discriminatory in that it denies to citizens residing in District No. 1 the right to become candidates and be elected as members of the newly established board of commissioners. A general demurrer to the petition, alleging in substance the foregoing facts, was sustained, and to the order of dismissal the petitioner filed his bill of exceptions to this court, assigning error on this judgment.

1. Art. 6, § 17, par. 1, of the Constitution of 1945, Code, § 2-5201, provides: 'The General Assembly shall have power to provide for the creation of county commissioners in such counties as may require them, and to define their duties.' Art. 11, § 1, par. 6, Code, § 2-7806, provides: 'Whatever tribunal, or officers, may be created by the General Assembly for the transaction of county matters, shall be uniform throughout the State, * * *except that the General Assembly may provide for Commissioners of Roads and Revenues in any county.' Art. 3, § 7, par. 15, Code, § 2-1915, provides: 'No office to which a person has been elected shall be abolished, nor the term of the office shortened or lengthened by local or special bill during the term for which such person was elected unless the same be approved by the people of the jurisdiction affected in a referendum on the question.' It is contended that the entire act of 1955 is void, for the reason that, since the act of 1943, under which Haynie held office as sole commissioner, was repealed, his office was abolished during his term without being 'approved by the people of the jurisdiction affected in a referendum,' and said act of 1955 violated the last quoted provision of the Constitution.

'In all interpretations, the court shall look diligently for the intention of the General Assembly, keeping in view, at all times, the old law, the evil, and the remedy.' Code, § 102-102(9). 'It is well settled that that construction of a statute is to be preferred which will give effect to the legislative intent and preserve the act, rather than that a construction be adopted which will necessarily destroy it.' Mathis v. Fulton Industrial Corp., 168 Ga. 719, 721, 149 S.E. 35, 36. It is apparent that the purpose of the legislature in passing the act of 1955 was to create a Board of Commissioners of Roads and Revenues of Clayton County, to consist of three members instead of a sole commissioner; that the incumbent sole commissioner was to continue to serve, as a commissioner from District No. 1, without interruption, and was to be chairman of the newly created threemember board for the remainder of his elected term, and that two new members should be elected by the people from Districts 2 and 3 at a special election.

To abolish an office means to abrogate,...