Wright v. Gamble

• Decision Date: 13 June 1911
• Citation: 71 S.E. 795,136 Ga. 376
• Parties: WRIGHT v. GAMBLE.
• Court: Georgia Supreme Court

71 S.E. 795

136 Ga. 376

WRIGHT v. GAMBLE.

Supreme Court of Georgia

June 13, 1911

Syllabus by the Court.

Where the tenure of an office is not prescribed by law, the power to remove is an incident to the power to appoint. In such case the appointee holds at the pleasure of the appointing power, although it attempts to fix a definite term; and no formalities, such as the preferring of charges or the granting of a hearing to the incumbent, are necessary to the lawful exercise of the authority of removal. The provision of Civil Code 1910, § 264, par. 3, is not applicable to such a case.

Error from Superior Court, Clarke County; C. H. Brand, Judge.

Quo warranto by J. B. Gamble against Tate Wright. Judgment for relator, and defendant brings error. Reversed.

Jno. J Strickland, for plaintiff in error.

W. M Smith and Cobb & Erwin, for defendant in error.

FISH C.J. (after stating the facts as above).

The controlling question presented by the record is whether the board of commissioners of roads and revenue of Clarke county created by an act of the General Assembly approved December 15, 1897 (Acts 1897, p. 389), the act providing that commissioners "shall elect their own clerk with such pay as the board may allow," had the power, in the absence of any law fixing the term of office of the clerk, to prescribe, by resolution duly passed, the tenure of the office of the clerk at two years, and having subsequently elected a clerk for that time, could remove the incumbent before the expiration of that term, without preferring charges against him and giving him an opportunity to be heard, and to elect another clerk in his stead? We deem it unnecessary to pass upon any other question presented by the record. It seems now to be the universally accepted rule that, where the tenure of the office is not prescribed by law, the power to remove is an incident to the power to appoint. 29 Cyc. 371; 23 A. & E. Enc. Law, 405; Mechem, Pub. Off. § 445; Throop, Pub. Off. § 304 et seq. In such a case no formalities, such as the preferring of charges against, or the granting of a hearing to, the incumbent, are necessary to the lawful exercise of the discretionary power of removal. 29 Cyc. 1408, and numerous cases there cited. See Coleman v. Glenn, 103 Ga. 458, 30 S.E. 297, 68 Am.St.Rep. 108, and Gray v. McLendon, 134 Ga. 224, 67 S.E. 859. Counsel for the defendant in error in the case now before us concede in their brief that, if the board of commissioners of roads and revenue of Clarke county had not fixed the tenure of office of their clerk, then the power to remove the defendant in error as clerk would have existed as an incident to the power of appointment in the board; but they contend that as the board had, as authorized by law, divested itself of such arbitrary power of removal, it could not revest itself with this power during the time for which the defendant in error was elected clerk under the resolution fixing the term of such office. The pivotal point of the case is whether the board had the power to fix the tenure of its clerk. If it had such authority, then Gamble, the defendant in error, who had been elected by the board for the term of two years, was not removable by it before the expiration of this term, without charges, notice, and a hearing. On the other hand, if the board was without power to prescribe a fixed term for its clerk, then Gamble, notwithstanding he had been elected for a purported fixed term, held the office at the pleasure of the board, and was removable at its discretion, without the preferring of charges, notice, or the benefit of a hearing.

The question under consideration has been passed on by several courts of last resort. In State ex rel. Moore v Archibald, 5 N.D. 359, 66 N.W. 234, it was held: "The grant of power to appoint to public office, where no term of office is fixed by law, carries with it as an incident the absolute power of removal at any time, without notice or charges or a hearing, and without the cause for removal being inquired into by any court. Such power vested in a board cannot be limited by any action taken by such board, whether by appointing the officer for a fixed term, or by by-laws restricting the power of removal to cases where cause for removal exists." In that case Moore applied for a mandamus to compel Archibald to turn over to the applicant the possession of the office of Superintendent of the State Hospital for the Insane, to which office Archibald, the defendant, had been appointed by the trustees of that institution for the term of one year, and from which he had been arbitrarily removed before the expiration of his term by the board of trustees, at a meeting called for that purpose, and at which Moore was appointed in Archibald's place (facts similar to those in the instant case). Prior to the appointment of Archibald, the board had passed by-laws making the superintendent and other named subofficials "subject to removal for good and sufficient cause, at the pleasure of the board of trustees," and that "charges against officers of the institution must be submitted in writing, and that a copy thereof should be furnished the officer against whom the charge is made at least one month before it is acted upon." Corliss, J., in pronouncing the OPINION, cogently said: "The by-laws which they [the tr...