Wallace v. State , 160 Ga. 570 ( 1925 )

Beck, P. J.

I regret that I am unable to concur with my associates in the answer given to questions 1 and 2. As I construe the statute creating the city court of Leesburg, which makes the clerk of the superior court of Lee" County ex-officio the clerk of the city court of Leesburg, these two offices are not entirely separate and distinct. While the duties performed as clerk in the two courts are separate, the same person performs the duties in both courts. The term “ex officio” means “by virtue of the office;” that is, the clerk of the superior court, by virtue of being clerk of that court, is made by law the clerk of the city court of Leesburg. It would appear impossible, as a matter of law, for the two offices to be entirely and totally distinct, for one reason at least; that is, that should the officer be removed from the office of clerk of the superior court, then as a matter of law he automatically becomes separated from the office of clerk of the city court of Leesburg. In' such circumstances it would be impossible, as a matter of law, for him to perform the duties of clerk of the city court of Leesburg. No person can be clerk of the city court who is not clerk of the superior court of that county. Suppose, for purposes of illustration, the judge of the city court (with lawful authority) passed an order removing the city-court clerk. What would then be the situation? A successor must be chosen, of course. How would this be clone, and under what law ? Obviously the law making the superior-court clerk ex-officio clerk of the city court would control. The superior-court clerk not having been removed, the holder of that office would continue to be clerk of the city court. This accounts for the absence of any authority, either in the act of 1905 establishing the city court of Leesburg or under general law, for the removal of the city-court clerk as such by the city court. The superior-court clerk, when he undertakes to perform any duty in the city court, carries with him the official status of being clerk of the superior court, and it is by virtue of this status that he has authority to act-in the city court, and he can not divest himself of this status or be divested of it and continue to perform any duty as clerk of the city court. In practice, throughout the State so far as I am advised, and certainly in the section where I am most familiar, where a superior-court clerk is ex-officio clerk of the city court he maintains one office room in the court-house, sits at one desk, and performs all of his duties for both courts, merely signing his name officially according to the nature of the official act and the court to which it appertains.

In the majority opinion it is said: “In the present case the removal of the clerk of the superior court of Lee County might have the effect of removing also the clerk of the city court of Lees-burg; but, for the reasons already stated, the judge of the city court of Leesburg alone is empowered to remove the clerk of the city court of Leesburg.” As I have stated above, in my opinion it is incorrect to say that the removal of the clerk of the superior court of Lee County might have the effect of removing also the cleric of the city court of Leesburg. It is obliged to have that effect, and it would be' impossible for it to have any other effect under the law as it exists. I am unable to agree, also, to the statement. that the judge of the city court of Leesburg alone is empowered to remove the clerk of the city court of Leesburg. The act of the General Assembly creating the city court (Ga. Laws 1905, p. 269, § 10) provides: “The judge of said city court of Leesburg is empowered to enforce the same authority over the said clerk and sheriff and their deputies as is exercised by the judge of the superior court over the clerks of the superior- courts and the sheriffs of the counties of Georgia.” In my opinion this does not authorize the judge of the city court of Leesburg to remove the clerk. I draw this conclusion because T do not think the judge of the. superior court has the authority to remove the clerk of the superior court. By this I mean that the judge alone, not as a court acting in conjunction with a jury, is not empowered to remove the clerk. The superior court properly organized, with a presiding judge to perform the legal functions within his province and a jury organized to pass upon disputed questions of fact, has the right, under the law (Civil Code of 1910, § 4897), to pass upon proper proceedings instituted for the purpose of removing the clerk; but the judge of the superior court, acting alone, has no such power. Accordingly the judge of the city court of Leesburg has no such power, and the part of the act quoted above does not confer that power. There is no other authority in the act which has reference to that subject. The part of the act of 1905 quoted above authorizes the judge to enforce his authority over the clerk by means of contempt proceedings, but it does not confer power to remove the clerk for malfeasance in office and'similar reasons falling within the terms of the code section cited.

I also dissent from the answer made to the fifth question. In my opinion the. reply to the fifth question is in irreconcilable conflict with the answer to the fourth question. As I agree fully to the answer to the fourth question, I am therefore unable to agree to the answer to the fifth question. In my opinion, where, in a proceeding to remove a clerk of the character under consideration, the jury finds the facts adversely to the defendant, the court then has no authority to do other than to carry that verdict into effect by a proper judgment. Of course, if on the trial the facts, in the opinion of the presiding judge, are insufficient to authorize the jury to find adversely to the clerk, the judge would be empowered to grant a nonsuit, or, after verdict, to grant a new trial.

Under the view I take of the questions propounded it is unnecessary to deal with the questions 8 (a), (b), (c), (d), and (e), because answers to these questions are desired only in the event this court should rule that the clerk of the superior court of Lee County can not be removed from the office of clerk of the superior court for any incapacity or misbehavior or misconduct in office as ex-officio clerk of the city court of Leesburg. I am authorized to say that Justice Hines concurs in this dissent.