Bradford v. Justices of Inferior Court , 33 Ga. 332 ( 1862 )

By the Court. —

Jenkins, J., delivering the opinion.

The respondents, in the Court below, placed their defense upon two grounds: 1st, That the relator had not been legally elected to the office to which he sought admission. 2ndly, That if legally elected, there being an incumbent, he had mistaken his remedy.

The first ground is the more important inasmuch as it goes to the merits of the relator’s case. Originally, all County Treasurers received their appointments from the Justices of the Inferior Courts of the several counties; and so they are still appointed in many, probably in a majority of the counties. But in the year 1856, by an Act of the Legislature, the appointment of County Treasurer for the county of Muscogee, and sundry others, was taken from the Justices of the Inferior Courts and given to the people of those counties respectively. In other words, the Act provided that from and after its passage the County Treasurer for each of the counties designated in it should be elected by the qualified voters therein residing. By ap Act of the 14th December, 1861, it is provided, “that all volunteers and other troops, citizens of this State, who are now by law entitled to vote, or who may at the time of such election, be entitled to vote at any election in this State, except such elections as are not retw'nahle to the Executive Department, be and they are hereby entitled to assemble at such place as they may be stationed at or in service, and cast their votes as though they were in their proper counties at such elections.” The next section of the Act directs how elections shall be conducted and returned in such cases, which is not material in this case. The record discloses that in the month of January last, in the county of Muscogee, and at sundry military posts, at which qualified voters of that county, answering to description of “volunteers and other troops, citizens of this State, etc.” were stationed, an election was held for county officers, and among others, for County Treasurer of Muscogee county. Prom all these different places where elections were holden, and by the •proper managers, regular returns were made of the votes polled. It is conceded that if the votes of soldiers in camps, regularly returned, be consolidated with the votes polled in Muscogee county, for County Treasurer, one Chaffin received a majority- of the votes; and that if the votes of soldiers in camps be excluded, Bradford, the relator, received a majority, and is entitled to the office. Thofe votes were in fact consolidated with the votes polled in Muscogee county, and Chaffin admitted to the office. In behalf of Bradford, the relator and plaintiff in error, it is insisted that the election of County Treasurer, comes within the exception in the act, (which I have italicised) being an election, not returnable (by law) to the Executive Department. The respondents insist that it is an election so returnable; and this is the point upon which this case turns.

1. By the Act of 1830, Cobb’s Digest, 236, it is made the duty of superintendents of elections held for county officers, “to return and certify to the Governor the result of the elections for that county.” It is said, however, that at the time this Act was passed the County Treasurer of Muscogee county was appointed by the Justices of the Inferior Court, and not elected by the people, and that therefore there is no direction that it shall be certified and returned to the Governor, the Act of 1830 being applicable only to elections by the people, then authorized by law. To this it is replied, that the Act of 1856, (pamphlet 405), which transfers the election of this officer for Muscogee county, to the people of that county, provides that said elections shall “ be subject in all respects to the same rules that other elections for county officers are.” That by the Act of 1830, the election for other county officers were required in 1856, and still are required to be returned to the Executive Department; and that, therefore, the election of County Treasurer for Muscogee county, is as much required to be returned to the Executive Department, as if it were so declared in terms by the Act of 1856. We think the reply is conclusive.

But it is further insisted, that the County Treasurer is not a county officer, and that, therefore, the Act of 1830 does not apply to him. It is urged that originally he was but the appointee and servant of the Inferior Court, and not entitled to a commission, and that the change in the mode of his appointment for Muscogee county, does not change his relation to the Court or the county, nor yet the nature of his employment. The position, place or office, (whatever be its proper designationj'Vas created by a public law, though its duties and functions are restricted to the limits of a singlé county. What is an office ? It is defined to be “that function by virtue of which a man hath some employment in the affairs of another, as of the king or of another person.” Cowell. 4 Jacob’s Law Dic., 433. “It is said that the word offioium principally implies a duty, and in the next place the charge of such duty; and that it is a rule, that where one man hath to do with another’s affairs against his will and without his leave, that it is an office, and he who is in it is an officer.” Carth. 478, 4 Jacob’s Law Dic. 433. “ Officers are public or private; and it is said that any man is a public officer who hath any duty concerning the public, and he is not the less a public officer where his authority is confined to narrow limits, because it is the duty of his office and the nature of that duty which makes him a public officer, and not the extent of his authority.’ Carth. 479, 4 Jacob’s Law Dic., 433.

2. Certainly, where an individual has been appointed or elected, in a manner prescribed by law, has a designation or title given him by law, and exercises functions concerning the public, assigned to him by law, he must be regarded as a public officer. It can make no difference whether he be commissioned by the Chief Executive officer with the authentication of the seal of State or not. Where that is given it is but evidence of his title to the office. This evidence may in some cases be of greater and in others of less solemnity. We hold, therefore, that a County Treasurer is an officer of the county for which he is appointed or elected.

But it might be conceded, for the argument, that he is not a county officer, and still the right of volunteers and other troops, citizens of this State, and entitled to vote in his election when at home, but temporarily absent in the military service of the country, to vote, under the provisions of the Act of 1861, can be demonstrated. That Act does not entitle them in terms to vote for public officers, or county officers, or State officers, but to vote “at any election” at which, if at home, they would be entitled to vote by the existing laws. Now, whether the County Treasurer be a county officer, an agent, or a servant of the Inferior Court, the process by which he is chosen in Muscogee county, is “ an election ” and in that election the volunteers of Muscogee county would be entitled, if at home, to vote. Whether he be an officer, agent, or servant, according to the Act of 1856, as already shown, the returns and certificate of his election are required to be made to the Executive Department, and therefore this election is not within the exception in the Act. Holding that the relator must fail on the merits of the case he makes, we do not find it necessary to consider the exception taken to his remedy.

Let the judgment be affirmed.