Ross v. Williamson , 44 Ga. 501 ( 1871 )

McCay, Judge.

1. This is a proceeding, under sections 161,166 of the Revised Code, to require the delivery of the books and papers of an office to a newly elected and commissioned officer, by the former incumbent. It is not intended as a mode of trying the right of either party to the office. That, by the long established practice of the country, is by writ of quo warranto. These provisions of the Code look solely to the retention of the books, papers, and other property of an office, by an incumbent against the newly elected and commissioned officer.

The first section declares that when any office is “vacated,” etc. The record and the law of the land shows that the office, in this case, was vacated by the expiration of the term of the incumbent. He only holds after that expiration as the ad interim possessor until his successor is elected and qualified. The petition shows that the petitioner has been elected and commissioned. That is all that is required by the statute. The word “ qualified,” used in the first section, clearly can only mean “ sworn in,” and this is the sense in which it is commonly used in the Constitution and laws: Constitution, Article 3, section 1, paragraph 2. Indeed, I think this is the universal use of it, as applied by law to public officers. The commission only issues on the qualification, and hence is evidence of it. The fact of the election, the eligibility of the officer, and his qualification, all are prima fade, stated in a case like this, by the statement that he has been commissioned and sworn. We think, therefore, the Court was right in overruling the demurrer.

Very clearly, also, under this statute, a jury trial was not contemplated. It is a summary proceeding, leaving the parties to the writ of quo warranto. The action of the Court does not settle the right of either party to the office, but simply that a vacancy had existed, that a successor had been qualified according to the forms of law. Even if the facts were disputed, it is for the Judge to try it. The result is merely to say who shall have the books, etc., and not to decide, except, prima fade, the right to the office.

2. The answer sets up that the complainant did not take the oath and give the bond within the time required by law. We think it is, perhaps, legitimate to inquire, even in a case like this, into the question of “ qualification.” It is said, in section 126 of the Code, that an office is vacated if the person elect fail to qualify and give bond within the time prescribed by law. We are clear, however, that this means a failure, that it only applies to cases when the officer is in fault. The simple statement that the oath was not taken and the bond filed within the time is not, in our judgment, sufficient. The Code, section 143, in regulating the time within which such bonds shall be filed, fixes it at so many days from the election, etc. But this has never been literally construed. In many of the counties, the shortest time mentioned here (twenty days) would most frequently be consumed in getting the returns to the capital and returning the commission to the Ordinary. It often happens that the election is contested, sometimes the mail fails, sometimes the commissions lie in the office through fault of the Ordinary. An experience of many years, as a county officer, informs me that the practice generally has been to notify officers that their commissions have arrived, and it has not been usual to consider the office vacant until this notice has been given ; and this upon the idea that the officer has not failed until he has notice that the Ordinary is ready, prepared by the presence in his office of the commission, to take the bond aud administer the oath. See the case of Basset vs. The Governor, 11 Georgia Reports, 207. We think, for these reasons, that the statement made in the answer that the petitioner had not taken the oath and given the bond within the time prescribed by law is not sufficient, that it ought to have further set forth that this was by his default. The Judge was not called upon to hear evidence because it was not claimed in the answer that the not taking the oath and giving the bond was by the fault of the complainant. Judgment affirmed.