Felker v. City of Monroe , 22 Ga. App. 301 ( 1918 )

Jenkins, J.

(After stating'the foregoing facts.) It is provided by section 862 of the Political Code (1910), that- “The mayor and council of each town or city are authorized, at their option, to elect three freeholders, residing in the town or city, as assessors, who shall value and assess all the property within said town or city liable for taxation.” It will be seen by the statement contained in the order passed by the learned judge who tried the case that it was not his opinion that the selection made by the council of one of their own members for a place upon .the board of assessors was a lawful one. It is well settled that such an appointment is wholly illegal, and that, since the act of his selection is void on its face, the appointee does not occupy the status of a de facto officer. Parrish v. Town of Adel, 144 Ga. 242 (86 S. E. 1095); Hawkins v. Intendant, 63 Ga. 527; 29 Cyc. 1381 (b); Meglemery v. Weissinger, 140 Ky. 353 (131 S. W. 40, 31 L. R. A. (N. S.) 575). The difficulty which existed in the mind of the trial judge, and which likewise presents itself to us, is whether the act of the board itself in making the assessments is rendered invalid by reason of the fact that it was participated in by one whose selection and appointment was wholly void, where no charge is made “of actual fraud or other illegal'conduct perpetrated upon the other members of the board of assessors by the disqualified member.” It is provided by section 4, paragraph 5, of the'Political Code that “A joint authority given to any number of persons, or-officers, may be executed by a majority of them, unless it is otherwise declared.” But where, as in this, case, the authority was not in fact exercised by the majority qualified members, but by them in conjunction with another person whose appointment was absolutely void,, it would not seem that the section which we have just cited would have application, but that any action so taken would be at least prima facie invalid. In the case of Crawford v. Crow, 114 Ga. 282 (40 S. E. 286), it was held that the recommendation of a grand jury putting into effect the alternative road law was not invalidated on account of the fact that one of its members was disqualified by reason of his non-residence, where it also affirmatively appeared that, irrespective of his vote, there was a majority ini favor of the recommendation. In this decision the court says: “It is now well settled that the ineompetency of one grand juror renders an indictment void, no matter how many unexceptionable jurors join with him in finding the bill. This rule in reference to indictments does not apply, however, to the recommendation of a grand jury that the provisions of the ‘alternative road law’ shall become- operative when it affirmatively appears that, irrespectively of the vote of a disqualified juror, there was ■ a majority in favor of the recommendation. The legislature, in authorizing grand jurors, by a recommendation, to put into effect such law, evidently intended to confer the power upon them as a representative body of citizens of the county who' might be serving as grand jurors, and who, on. account of their uprightness, intelligence, and experience, would be well qualified to determine, under all existing conditions, whether the interests of the county and its citizens would be promoted by having the public roads worked under the ‘alternative road law;’ and in passing upon such question, a majority of the votes of those qualified to act as grand jurors must control. In the present case, as we have seen, the recommendation in question was adopted by a large majority, if not by the unanimous vote, of the members of the grand jury, 'all of whom were qualified except Ertzberger, and his vote could not have changed the result of their action.” The doctrine that the acts of an official disqualified to' serve whose appointment is not void on its face may still be valid, for the reason that he is an officer de facto, doe.s nof seem to have application with respect to jurors. Ordinarily, the mere non-residence of an official does not deprive him of his rights and powers as a de facto officer, but such was not the theory on which the case just quoted from was decided. The.clear intimation in that case, however, was to the effect that the action was prima' facie illegal, but that since it was affirmatively shown that the action was taken without the aid of the disqualified member, and that his vote could not have changed the result, the recommendation was upheld as a legal one. In the casé which is now before us it is not made to appear that the action of the board of assessors was. taken without the aid of the disqualified member; it is not shown that the action was not in fact dependent upon his aid. It would seem, moreover, from the language of the excerpt which we have quoted from the Crawford case, supra, that such a recommendation by the majority members of a grand jury stands upon a somewhat different footing from the ordinary official acts of public boards. In such a grand jury recommendation it is the majority opinion of the representative citizens constituting its membership which the law seeks to arrive at and give effect to. Here it is not a question .of what was the majority opinion of such representative citizens, but tbe act which is called into question is simply the .operative function of an official board. In the case of Wright v. State, 124 Ga. 84 (52 S. E. 146), the Supreme Court held that' “Even if a person be ineligible to hold the office of jury commissioner, yet if he is appointed to such-office and acts therein, he is, while so acting, a jury commissioner de facto, and the official acts of the board of jury commissioners wherein he participated are valid, and can not be collaterally attacked upon the ground that such person was incompetent to hold the office of jury commissioner.” The ruling here upholding the official acts of that board is thus based specifically and entirely upon the proposition that the disqualified official who participated therein was in that case an officer de facto, the clear intimation necessarily being that had he not been such, the holding would have been otherwise. To the same effect see Smith v. Bohler, 72 Ga. 546 (7), where it was held that, “'Although the board may have consisted in part of persons who were not freeholders, they were all de facto in office, and competent to act until ejected.” In the instant case the act of the board of assessors, participated in by a person whose appointment is so wholly and palpably illegal as to prevent him from occupying the status of an officer de facto, would seem to be at least prima facie illegal, if indeed not wholly void. See Hardy v. Gainesville, 121 Ga. 327 (48 S. E. 921). But whether wholly illegal or not, such an act by such a board can not, under the facts as presented by the record, be upheld upon the theory of having been taken by its legally constituted members, since, so far as the record goes, the action is at least prima facie illegal as being in part the act of a stranger.

There is no cross-bill of exceptions to the judgment sustaining the affidavit of illegality as to execution No. 208 on the ground that it had been improperly issued,- and that judgment stands affirmed; but the judgment overruling ground 3 thereof is reversed, as is the order and judgment overruling ground 3 of 'the affidavit of illegality filed to execution No. 207. <

Judgment affirmed in part and reversed in .part.

Wade, O. J., and Lulcej J., concur.