McLendon v. Everett , 205 Ga. 713 ( 1949 )

1. The right of a citizen to hold office is the general rule, and ineligibility the exception. A citizen may not be deprived of the right to hold office without proof of some disqualification specifically declared by the Constitution or statutory law. The office holder in this case was not ineligible for appointment as a member of the State Board of Pardons and Paroles, nor did he forfeit his office, under any allegation of the petition.

2. The petition in the present case does not show that there was any delay or prejudice to any right of the petitioner by reason of the fact that a member of the State Board of Pardons and Paroles was engaged in the business of banking and farming, and the petition fails to show any cause for an application of the writ of injunction. The court did not err in sustaining the general demurrer to the petition.

No. 16729. SEPTEMBER 12, 1949. E. B. McLendon Jr., as a resident and taxpayer of Richmond County, Georgia, filed an action against Edward B. Everett, as Chairman and member of the State Board of Pardons and Paroles, W. E. Wilburn, "who is claiming to be a member of the State Board of Pardons and Paroles," R. E. Warren, as Director of the State Board of Corrections, and George B. Hamilton, as Treasurer of the State of Georgia. In brief, the petition alleged: The petitioner is incarcerated in the Georgia State Prison, having been convicted in the Superior Court of Richmond County for murder, and sentenced to death by electrocution. The Constitution of 1945 provides for a State Board of Pardons and Paroles, eligibility of the members being set forth in the act creating such board (Ga. L. 1943, pp. 185-195). The act provides that persons sentenced to death after conviction of crime may apply to the State Board of Pardons and Paroles, and after hearing, such board may commute the sentence to life imprisonment. The petitioner made application for commutation of his sentence to life imprisonment, and commutation was denied, Edward B. Everett voting for commutation, and the other two members voting against it. The petitioner has learned since the decision adverse to him that one member who voted against commutation is ineligible to be on the board, and disqualified from sitting on the petitioner's case, or any other case. At the time W. E. Wilburn was appointed to the board, at the time the petition for commutation was filed, the hearing had, and while it was being considered, he was ineligible and disqualified because he was a member of the State Democratic Executive Committee of Georgia, and was at all of those times engaged in the business of banking and farming. Since learning these facts the petitioner has made application to the Chairman of the board to grant another hearing, after the Chairman has advised the Governor of the ineligibility of W. E. Wilburn, and after a qualified board is duly constituted. The petitioner has called upon the ineligible member to vacate the office which he occupies as a usurper, and his request has not been granted. The petitioner is willing and anxious to comply with the statutory requirements and rules and regulations governing the commutation of his sentence to life imprisonment. He has not been resentenced, but is in the care, custody, and control of R. E. Warren, Director of the Board of Corrections, whose duty it would be to carry into effect the execution of any sentence imposed upon the petitioner, and it is necessary that the petitioner have equitable relief to prevent such sentence being carried into effect. George B. Hamilton, as Treasurer, pays the salary and subsistence of W. E. Wilburn, and it is necessary that equitable relief be granted to prevent further payment pending a determination of the matters act forth. Wilburn is in possession of the office of State Board of Pardons and Paroles and is contending that he is a member, and undertaking to act in official matters, without lawful warrant or authority. It is the duty of Edward B. Everett, as Chairman and lawful member of the board, to grant a hearing to the petitioner and to request the Governor to grant a stay of execution. The petitioner cannot procure complete relief by any one proceeding, either for mandamus, quo warranto, injunction, or any legal or equitable action, except in an action of the nature filed, where all equitable powers may be exercised for the preservation and protection of the rights of the petitioner.

He prayed: that Warren, as Director of the Board of Corrections, be enjoined from executing any sentence of death, pending a determination of his action; that Hamilton be enjoined from paying any salary or subsistence to W. E. Wilburn; that Wilburn be enjoined from continuing to occupy the offices of the State Board of Pardons and Paroles and from holding himself out to be a member thereof, and from doing any act or thing connected with the duties of such office; that Everett, as Chairman, be required to notify the Governor of Georgia that there is a vacancy in the office of the State Board of Pardons and Paroles, and request the appointment of a qualified member; and for other relief.

A general demurrer was sustained, and the exception is to that judgment. 1. The Constitution of 1945, art. 5, sec. 1, par. 11 (Code, Ann., § 2-3011), creating the State Board of Pardons and Paroles as a constitutional board, does not provide for the qualifications of the members of the board. The act of 1943, approved February 5, 1943 (Ga. L. 1943, pp. 185-195), enumerating the powers and duties of the board, does not make any provision for, or reference to, the qualifications of the members of the board at the time of their appointment. The qualifications of members of the board would, therefore, be controlled by the general provisions of our Constitution and statutory law limiting the rights of citizens to hold public office.

The Constitution, art. 2, sec. 2, par. 1 (Code, Ann., § 2-801), art. 2, sec. 4, par. 1 (Code, Ann., § 2-1001), art. 3, sec. 4, par. 6 (Code, Ann., § 2-1606), and art. 7, sec. 3, par. 6 (Code, Ann., § 2-5606), and the Code, §§ 79-301 and 89-101, all provide disqualifications for the holding of public office. It is not alleged that W. E. Wilburn is disqualified to serve as a member of the Board of Pardons and Paroles by reason of any constitutional provision, nor is it alleged that under the general statutory law he was ineligible for appointment. The petitioner relies solely on section 10 of the act of 1943 to support his contention that Wilburn is ineligible to serve as a member of the board.

Section 10 provided in part as follows: "No member of the Board or no full time employee thereof shall, during his service upon or under the Board, engage in any other business or profession or hold any other public office; nor shall he serve as a representative of any political party, or executive committee or other governing body thereof, or as an executive officer or employee of any political committee, organization or association, or be engaged on the behalf of any candidate for public office in the solicitation of votes, or otherwise become a candidate for public office without resigning from the Board."

Section 3 of the act of 1943 provides in part as follows: "The members of the Board shall devote their full time to the duties of their office."

The provisions of sections 3 and 10 of the act of 1943 relate solely to the conduct of the members of the board (and fulltime employees) after appointment, and section 10 does not either expressly, or by inference, by any of its terms, purport to deal with the qualifications of a member of such board at the time of his appointment.

In Pattern v. Miller, 190 Ga. 123, 139 (8 S.E.2d 757), it was held: "Among the rights of citizens, as declared in the Code, are the right to hold office unless disqualified by the constitution and laws, and the right to appeal to the courts. Code, § 79-205. . . So the right of a citizen to hold office is the general rule, ineligibility the exception; and therefore a citizen may not be deprived of this right without proof of some disqualification specifically declared by law."

W. E. Wilburn was duly appointed by the Governor as a member of the State Board of Pardons and Paroles on December 1, 1948 (see Minutes of Executive Department); took the oath of office as a member of such board on the same date (see Book of Official Oaths, Executive Department); received a commission pursuant to his appointment; and his appointment was duly confirmed and ratified by the State Senate on January 13, 1949 (Senate Journal, 1949). He thus became a constitutional (de jure) officer, filing a constitutional office. If he has violated the terms and conditions of the act of 1943, such violation as a member of the board in no wise affected his original appointment by the Governor.

Section 10 of the act of 1943 does not provide any penalty for a violation of its terms. It is not declared that, if a member of the board shall serve as a representative of a political party, or engage in any other business or profession, he shall thereby forfeit his office. The General Assembly might have provided that a member of the Democratic Executive Committee could not be appointed as a member of the State Board of Pardons and Paroles, and might have declared a member of the committee to be ineligible for appointment on the board. This the legislature did not do. They provided that a member of the board should not serve as an executive officer or employee of any political committee.

An officer, member, or employee of a political committee is not a "public officer." Morris v. Peters, 203 Ga. 350 (46 S.E.2d 729). If being a member of the State Democratic Executive Committee made Wilburn the holder of an "office" at the time of his appointment as a member of the Board of Pardons and Paroles, he would not thereby forfeit his appointment as a member of such board. In McWilliams v. Neal, 130 Ga. 733, 735 (61 S.E. 721), this court quoted with approval the following rule: "``Where, however, it is the holding of two offices at the same time which is prohibited by the constitution or the statutes, a statutory incompatibility is created, similar in its effect to that of the common law, and, as in the case of the latter, it is well settled that the acceptance of a second office of the kind prohibited operates ipso facto to absolutely vacate the first.' Mechem's Pub. Offices, §§ 428-9." See also 42 Am. Jur., 940, §§ 77, 78; Long v. Rose, 132 Ga. 295 (64 S.E. 84); Smith v.Lester, 132 Ga. 519 (64 S.E. 478).

2. "A statutory provision is generally regarded as directory where a failure of performance will result in no injury or prejudice to the substantial rights of interested persons, and as mandatory where such injury or prejudice will result." 50 Am.Jur., 49, § 26.

In the present case it is not alleged that the application of the petitioner for a commutation of sentence was delayed by reason of Wilburn being engaged in the business of farming and banking. On the contrary, the petition shows that the application was filed after the imposition of the death sentence on March 25, 1949; that the hearing was set for April 11; (that a stay of execution was granted by the Governor); and that on April 28, commutation of sentence was denied. Since the Constitution requires that the board must act within 90 days from the filing of the application, it appears that the petitioner's application for commutation was considered and acted upon within the time prescribed. It is not alleged that Wilburn voted against commutation of the petitioner's sentence because he was engaged in the business of farming and banking. No delay or prejudice to any right of the petitioner is shown by the allegations of his petition.

The petitioner prayed that Wilburn "be enjoined from continuing to occupy the offices of the State Board of Pardons and Paroles; and from holding himself out as a member thereof; and from doing any act or thing connected with the duties of such officers." It is a well-settled general rule that courts of equity will not exercise their powers to grant injunctions at the instance of one who fails to show that he will be irreparably injured, or other special circumstances requiring the issuance of the writ.

The Constitution, art. 5, sec. 1, par. 11 (Code, Ann., § 2-3011), and the act of 1943 (Ga. L. 1943, p. 185), provide that a person sentenced to the extreme penalty of the law may make application for commutation of his sentence. It is the clear intent of the Constitution and the act that consideration and action upon one application for commutation by the board is all that the prisoner may demand as a matter of right. Whether or not a second application would be considered and acted upon by the board would be a matter for their discretion.

The petitioner in this case was accorded a full and complete hearing by a duly qualified, constitutional board. No right or privilege granted the petitioner by the Constitution, and the act of 1943, has been denied him by the board, and he does not show (nor can he show) that he will be irreparably injured in the future by any business activities of the defendant Wilburn. The petition failed to state a cause of action for the relief prayed, and the trial court properly sustained the general demurrer.

Judgment affirmed. All the Justices concur. Atkinson, P. J.,concurs in the judgment only.