Wiley v. Douglas
| Decision Date | 12 June 1929 |
| Docket Number | 7042. |
| Citation | 148 S.E. 735,168 Ga. 659 |
| Parties | WILEY v. DOUGLAS. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The Act of July 30, 1927 (Acts 1927, p. 564), provides "that there is hereby created in said Early county a board of county commissioners which board is hereby required to assume and discharge all the functions of the board of commissioners as it now exists" (section 2); "that within three months after the passage of this act it shall be the duty of the election authorities of Early county to call an election in said county for the purpose of filling the five offices herein created;" and that "as soon as these officers shall be chosen the said board shall take over and assume the duties and functions of the board of county commissioners abolished by the provisions of this act" (section 5).
(a) Properly construed, this act abolished the board of commissioners in existence at the date of its passage, the abolition to take effect upon the election and qualification of the members of the new board in the manner prescribed by said act; but until the election and qualification of the members of the new board the members of the existing board should discharge the duties and functions conferred upon them as the board of county commissioners of said county.
(b) No election having been called and held for the purpose of choosing the members of the board of commissioners created by said act, the members of the board existing at the date of its passage should discharge the duties and functions imposed upon them as the board of county commissioners of Early county until the members of the new board are elected and qualified.
(c) The petition of the relator alleged that no election had been called or held for choosing the members of the board of commissioners created by the Act of July 30, 1927, and as the court rendered judgment upon the facts alleged in the petition, without hearing evidence, this fact must be taken to be true. This fact being assumed, the relator was entitled to discharge the duties and functions of a member of the existing board until the members of the new board were elected and qualified, as against one who did not show that he was entitled to act as a member of the existing board.
(d) After the pasage of the Act of July 30, 1927, no election for members of the board of county commissioners of said county could be held, except under said act, and in the manner prescribed therein, and the respondent, who claimed that he was entitled to hold the office of a member of such board by reason of an election held in 1928 under an act passed prior to the Act of July 30, 1927, showed no title to the office of a member of the board of county commissioners of Early county.
(e) The office of the relator, even if he had been elected for the term of four years, was abolished by the Act of July 30 1927, and he would not be entitled to discharge the duties and functions of such office, if members of the new board had been elected and qualified.
The constitutionality of the acts attacked is not decided, for the reason that the case can be properly disposed of without passing upon their constitutionality.
The court erred in denying to petitioner the writ of quo warranto, under the facts alleged in his petition.
Error from Superior Court, Early County; M. J. Yeomans, Judge.
Quo warranto by Willie Wiley against L. F. Douglas. Judgment for defendant, and petitioner brings error. Reversed.
W. I Geer, of Colquitt, for plaintiff in error.
A. H Gray, of Blakely, for defendant in error.
HINES, J. (after stating the foregoing facts).
1. The Act of February 28, 1876, created a board of commissioners of roads and revenues for Early county, and defined their duties. This act provided that the first board of commissioners provided thereby should be appointed by the grand jury at the next spring term of the superior court, and should hold their offices until the next regular election for county officers for said county, when their successors should be elected and be commissioned as other county officers, their terms of office being for two years. It is a curious fact that this act does not provide for the number of commissioners to be appointed or elected thereunder, while it provides that three members of said board were necessary to constitute a quorum to transact business. Acts 1876, p. 274. By the Act of February 17, 1877, the above act was amended. By the amending act five named persons were appointed a board of commissioners of roads and revenues for said county, who should enter upon the discharge of their duties as such as soon as they should have taken the oath required of civil officers of this state, and they should hold their offices until their successors should have been elected and commissioned as therein provided. By this act said board of commissioners should consist of five freeholders of said county, their terms of office should be for two years, they should be elected by the people as other county officers, and they should enter upon the discharge of their duties as such board as soon as they shall have been commissioned by the Governor. Acts 1877, p. 255.
On August 18, 1913, the Legislature passed another act, entitled "An act to amend an act to create a board of commissioners of roads and revenues for the county of Early, and to define the duties of the same, to add another member to said board, to separate said board into committees, and to define the duties of each committee, and for other purposes." Acts 1913, p. 382. While this act does not expressly refer to the above act of February 17, 1877, it plainly has reference thereto. The first section of this act declares that the board of commissioners of said county shall consist of six members, who shall serve until their successors are elected as thereinafter stated. By the second section it is provided "that the members of said board of commissioners shall be those now holding the offices of county commissioners for the county of Early, together with John D. Abernathy." By the eighth section of this act the terms of the members of the board of commissioners were fixed for four years, and it was provided that the first election for the members of said board should be held in the year 1916, and an election for that purpose should be held every four years thereafter, in the same manner and at the time prescribed for the election of members of the General Assembly, except that the election for these commissioners should be held every four years, instead of every two years. No election of said officers was held under this act, for the reason that the provision for an election in 1916, and for subsequent elections, was repealed by the act to which we now refer.
By the Act of August 16, 1915, the Act of August 18, 1913, was repealed. This repealing act provided that its effect should be to restore "the law on the subject of the board of county commissioners of roads and revenues for the county of Early to the same condition it was on the day when said act above referred to was passed," but with a further provision "that the present board of county commissioners who constituted said board at the time of the passage of the above-named act hereby repealed shall continue to serve until their successors are elected." These successors were to be elected at the next general election for county officers held in the county of Early, and the term of office for the members of said board should be for four years, "as other county officers' terms now are." Acts 1915, p. 214. It will be observed from the act last cited that the county commissioners in office at the time of its passage should continue to serve until their successors were elected, and that their successors should be elected at the next general election for county officers held in said county, and that the term of office of members so elected should be for four years. The first election for these successors took place in 1916, and under this act succeeding commissioners were elected every four years, until this act was subsequently changed, as will be later shown. The Legislature then passed the Act of August 17, 1917, the caption of which is set out in the statement of facts. By this act it is provided that the county shall be divided into five named divisions, and that the commissioners shall be elected by the qualified voters of the entire county, but the member receiving the highest vote from each of the respective districts shall be elected as commissioner from that division, and the five members thus elected shall constitute the board of county commissioners. This act contains the provision that "the acts creating and regulating the said board of county commissioners of Early county are modified accordingly, but in other respects shall remain the same." Acts 1917, p. 349. It will thus be seen that the terms of these offices continued, under this act, to be for four years.
On August 16, 1922, the Legislature passed another act, entitled "An act to amend an act approved August 17, 1917 relating to the board of commissioners of roads and revenues of Early county, so as to fix the term of office of said commissioners; to provide per diem for their services, and for other purposes." By this act the Act of August 17, 1917, was amended by adding thereto this section: "The term of office of said board shall be two (2) years; provided, that the provisions of this section shall not go into effect until January 1st, 1925." Acts 1922, p. 353. Thus...
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