Wellborn v. Estes

• Decision Date: 28 February 1883
• Court: Georgia Supreme Court
• Parties: Wellborn. vs. Estes.

70 Ga. 390

Wellborn. vs. Estes.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1883.

[This case was brought forward from the last term, under §4271 (a) of the Code.]

Constitutional Law. Judges. Courts. Before Judge Harris. Hall county. At Chambers. January 27, 1883.

Carlton J. Wellborn filed his petition for leave to file an information in the nature of a quo warranto against John B. Estes. The petition alleged, in brief, as follows On August 8, 1881, the legislature passed an act creating the Northeastern Judicial Circuit. On August 11, Wellborn was regularly elected judge of the circuit, and was commissioned on the following day. The commission, which was attached as an exhibit to the petition, provided that it should " remain in force until the first day of January, 1883, and until your successor is elected and qualified in the mode pointed out by the constitution and laws of this state." By the second section of the act creating the circuit it was provided that the judge first elected should hold his office until January 1, 1883. Under hiselection, Wellborn proceeded to perform the duties and enjoy the emoluments of the office. On November 21, 1882, the general assembly proceeded to vote for a judge for said circuit, to hold office from January 1, 1883, for the term of four years. At this election, Estes received a majority of the votes cast, was declared elected, was commissioned, and, since January 1, 1883, has proceeded to act as judge. The petitioner insists that the second section of the act of 1881, limiting the term of the first incumbent, was unconstitutional, that the election thereunder was of no effect, and that the acts of Estes as judge amounted to a usurpation of petitioner\'s rights.

A rule nisi was issued, calling on Estes to show cause why an information in the nature of a quo warranto should not be filed.

Respondent demurred to the petition, and for cause why the information should not be filed, showed as follows: By the act of August 8, 1881, the Northeastern Circuit was created, and it was provided that a judge should be elected at the pending session of the legislature, to hold office until the next regular election of judges for half the judicial circuits already established, and until the time fixed by law, after said election, when the terms of said judges should expire; and that at said next regular election a judge should be elected for the full term, who should hold office as the other judges then elected for existing circuits; and that thereafter a successor of the judge so elected should be elected as provided by the constitution and laws. In pursuance of a joint resolution of the legislature to elect a judge for the term prescribed in the act, Wellborn was elected and commissioned. He accepted this commission, and under it acted as judge. On November 21, 1882, the general assembly proceeded to elect a judge for the full term. Petitioner and respondent were both candidates, and both received votes, but respondent receiving a majority, was declared elected for the full term of four years, was duly commissioned, and has, since January 1, 1883, acted as judge thereunder. Both parties were eligible to election.

The hearing was had at chambers, January 27, 1883. The prayer of the petitioner was refused, and the petitioner excepted.

In support of their position, counsel for plaintiff in error cited the following authorities: On term of office, Const. 1877, section 3, par. 1-2; 1 McCord, 151-5-37 Cal., 614; 12 Id., 391. Not a vacancy, Const, art. 6, sec. 3, par. 2-3; 54 Ga., 391; 44 Ga., 76. Election in 1882 invalid, 5 Wend., 423; 11 Cal., 77, 88; 12 Id., 378. Creation of circuit valid, fixing the term invalid, 1 McCord, 155; 2 Wend., 266; 11 Id., 132; 12 Cal., 378. Not a political question, 2 Ala, 31; 1 Id., 688; 12 Cal., 378; 42 Ga., 405; 62 Pa., 343; 3 Snead, 6.

Cited by defendant in error: Judges classified, Const., 1868, art, 5, sec. 3, par. 1; 54 Ga., 393; Convention proceedings, 1877, pp. 163, 232; Const., 1877, art. 6, sec. 7, par. 2; Ordinance, Code, p. 1328; Acts, 1881, p. 12. Vacancy, 44 Ga., 76; 49 Id., 115; Acts, 1855-6, p. 216; 89 Pa. St., 419; 7 Ind., 329; 8 Id., 350; 5 Nev., 111; 6 How. (Miss.), 601; 1 Opinions att'y gen'l, 631; 2 Id., 525; 3 Id., 673 14 Id., 2. Political question, 41 Ga., 161; 7 Howard, 43; 13 Wallace, 649; 6 Id., 50.

E. N. Broyles; F. L. Haralson; R. J. McCamy, for plaintiff in error.

Hopkins & Glenn; Dunlap & Thompson, for defendant.

Hall, Justice.

The sole question made in this case is, whether that portion of section 2 of the act of the general assembly of 1881 (p. 112), establishing the Northeastern judicial circuit, in the words following: " That a judge shall be elected by the general assembly at the present session, to hold office until the next regular election for half the judicial circuitsalready established, and until the time fixed by law, aftei said election, when the terms of said judges expire, " conforms to that provision of the constitution fixing the term of office at four years, and until his successor is qualified. Art. vi., §3, par. 1, constitution of 1877 (Code, §5136), and to other provisions of that instrument, relating to the same subject, especially par. 2 and 3 of the same article and section (Code, §§5137, 5138), which are as follows: "The successors to the present incumbents shall be elected by the general assembly, as follows: to the half (as near as may be) whose commissions are the oldest, in the year 1878; and to the others, in the year 1880. All subsequent elections shall be at the session of the general assembly next preceding the expiration of the terms of incumbents, except elections to fill vacancies. The day of election may be fixed by the general assembly."

" The terms of the judges to be elected under the constitution (except to fill vacancies), shall begin on the first day of January after their elections. But if the time for the meeting of the general assembly shall be changed, the general assembly may change the time when the terms of judges thereafter elected shall begin."

By section 12, par. 1, of the same article, it is provided that, "The judges of the superior court" (among other officers named) " shall be elected by the general assembly, in joint session, on such day or days as shall be fixed by joint resolution of both houses. At the session of the general assembly which is held next before the expiration of the terms of the present incumbents, as provided in this constitution, their successors shall be chosen; and the same shall apply to the election of those who succeed them Vacancies occasioned by death, resignation, or other cause, shall be filled by appointment of the governor, until the general assembly shall convene, when an election shall be held to fill the unexpired portion of the vacant terms. Code, §5161.

By an ordinance of the convention which framed thisconstitution, it was declared that, There shall be sixteen judicial circuits in this state, and it shall be the duty of the general assembly to organize and proportion the same in such manner as to equalize the business and labor of the judges in said several circuits, as far as may be practicable. But the general assembly shall have power hereafter to re-organize, increase, or diminish the number of circuits; provided, however, that the circuits shall remain as now organized until changed by law." Code, 1882, p. 1328.

The act of the 8th of August, 1881, organizing and creating this judicial circuit, after fixing the term of the first judge elected and commissioned under it, further provides that, after his term expires, " at the next regular election of judges for the circuits of the state, a judge for said northeastern circuit shall be elected for the full term, who shall hold office as the other judges then elected for the other existing circuits, and his successors shall be thereafter elected as provided by the constitution and laws." Acts 1880-1, p. 113.

The plaintiff in error, who was the first judge elected under the act creating the circuit, and who was commissioned in pursuance of the act, to hold his office from the date of his election in August, 1881, until the first day of January, 1883, contends that so much of the act as limited his official term to that date, and provided for the election and qualification of his successor at the session of the general assembly next preceding that period, was repugnant to the above recited provisions of the constitution and of the ordinance of the convention that framed the constitution and that the requirements thereof could only have been complied with by extending his term to the first day of January 1885, that his successor could not have been legally elected, except at the session of the general assembly next preceding this date, viz.: at the session of 1884, and that, inasmuch as his office was created by the constitution, and the term thereof was fixed by thesame instrument, it continues, notwithstanding the election of the defendant in error as his successor, by the session of the general assembly of 1882, under the provisions of the act, and his commission and qualification by the governor, in pursuance of said election.

In determining questions of such moment and delicacy as those here presented, we feel bound to proceed with great caution, and not to set aside the action of a co-ordinate department of the government, except where the conflict between that action and the fundamental law is clear and palpable. It must be so apparent as to leave no reasonable doubt as to its existence, upon the judicial mind. We hold, with an eminent judge and learned commentator, that " constitutions are not designed for meta physical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness or judicial research. They are instruments of a practical nature, founded on the common business of...