Thornton v. McElroy , 193 Ga. 859 ( 1942 )

1. The act of the General Assembly creating the board of commissioners of roads and revenues for Clayton County (Ga. L. 1910, p. 256) provides that the "commissioners shall be freeholders and qualified voters of said county and shall reside in the road district from which they are elected." Under this provision of the act a person must be a freeholder of Clayton County in order to be eligible to hold office as a commissioner.

2. After the respondent had been elected and had entered upon the performance of his duties as commissioner of roads and revenues for district No. 3 of Clayton County, but before the institution of the instant quo warranto proceedings to test his right to hold the office, the original act of 1910 was amended by an act redefining the areas comprising the five road districts of Clayton County, and naming and appointing the respondent to hold office as commissioner for new District No. 3. The fact that the legislature thus named and appointed the respondent, who was not a freeholder of Clayton County, did not work an implied repeal of the requirement of the original act that commissioners should be freeholders of the county. Neither did the appointment by the legislature raise a conclusive presumption of the respondent's eligibility. It thus appearing from the facts alleged that the respondent is ineligible to hold office as a commissioner, because he is not a freeholder of Clayton County, the court erred in sustaining his general demurrer and dismissing the quo warranto proceeding.

No. 14092. APRIL 16, 1942. REHEARING DENIED MAY 20, 1942. In October, 1941, Howard Thornton as a citizen and taxpayer of Clayton County, in behalf of himself and all others similarly situated, instituted a quo warranto proceeding for the purpose of inquiring into the right of J. D. McElroy to hold office as a commissioner of roads and revenues of Clayton County. The petitioner alleged that at a regular election held in November, 1940, J. D. McElroy, a resident of Clayton County, was elected commissioner of roads and revenues for district No. 3 of said county; that he took the oath of office, and is now performing the duties of same; that he is not eligible to hold said office, because at the time of his induction into office he was not a freeholder of Clayton County, as required by the act of the General Assembly creating the board of commissioners of roads and revenues for Clayton County. The action was dismissed on general demurrer, and the plaintiff excepted. 1. Section 1 of the act of the General Assembly creating the board of commissioners of roads and revenues for Clayton County (Ga. L. 1910, p. 256), provides: "Said commissioners shall be freeholders and qualified voters of said county and shall reside in the road district from which they are elected." The petition charges that the respondent is not a free-holder of Clayton County, but in the briefs it is admitted that he does have such an interest in land in another county as to constitute him a freeholder. Therefore the question presented is whether the quoted portion of the act means that a commissioner shall be a freeholder "of said county." The natural and normal construction of the sentence is that the clause "of said county" relates to both "freeholders" and "qualified voters." 17 Words Phrases, 665. This is also the reasonable construction to be given the sentence, because a person's ownership of land in one county would seem to have little or no relationship to his qualification to hold office as a county commissioner in another county, while his ownership of land in the county in which he is elected commissioner might be expected to have a direct bearing on his conduct in the performance of the duties of that office. The board of commissioners has charge of the fiscal affairs of the county, and the amount of taxes levied may depend to a large extent upon the manner in which the affairs of the county are conducted by that board. A commissioner who owns real estate in the county, which must bear its proportionate part of the cost of government, might reasonably be expected to be more prudent in the expenditure of county money than one who does not own property in the county. While "words limiting the right of a person to hold office are to be given a liberal construction in favor of those seeking to hold office, in order that the public may have the benefit of a choice from all of those who are in fact and in law qualified" (Gazan v. Heery, 183 Ga. 30 (4), 187 S.E. 371), it does not follow that the courts should give words an unreasonable construction in order to uphold the right of one to hold office. Properly construed, the act creating the board of commissioners of Clayton County requires the commissioners to be freeholders of that county. Therefore, under the facts alleged in the petition, the respondent was ineligible to hold office as such commissioner.

2. On February 26, 1941, the act creating the board of commissioners of roads and revenues for Clayton County was amended. Ga. L. 1941, p. 818. That act, after redefining the areas comprising the five road districts of the county, named and appointed commissioners for each of the districts as thus defined. J. D. McElroy, the respondent, was named commissioner for district No. 3. It is contended that by naming the respondent to the office this act repealed the requirement of the original act that he should be a freeholder of the county. There is no merit in this contention. The amendatory act does not purport to change the portion of the original act requiring the commissioners to be freeholders and qualified voters of the county. Repeals by implication are never favored; and not even an implication of an intention to repeal can be found in the circumstances of the instant case. The legislature merely named as commissioner for the new district No. 3 the person who had been previously elected commissioner for old district No. 3. There is nothing to show that the legislature was aware that the person thus named was not eligible to hold the office. Neither does the fact that the legislature named the respondent as one of the commissioners of roads create a conclusive presumption that he was qualified and eligible to hold the office. Malone v.Minchew, 170 Ga. 687 (5) (153 S.E. 773). The qualification or eligibility of such an appointed officer may be determined by the courts in a proper proceeding brought for that purpose. The petitioner having alleged sufficient facts to show that the respondent is ineligible to hold the office of commissioner, it follows that the court erred in sustaining the general demurrer and dismissing the quo warranto proceeding.

Judgment reversed. All the Justices concur.