Walton v. Davis , 188 Ga. 56 ( 1939 )

Reid, Chief Justice,

concurring specially. I can not subscribe to the view taken in the opinion of Mr. Justice Grice that the statute in question violates the due-process clause of the State and Federal constitutions, but I am prepared to concur in the judgment of affirmance, because it is my opinion that the statute under which the removal of the commissioner was sought must be treated as contemplating notice and hearing by the grand jury before its recommendation should be made to the judge of the superior court; and that since such notice and hearing was not accorded him, the effect of the judgment below properly leaves him in the office. The legislature has the power to make any provision it may see fit in respect to tenure of public office, so long as its enactments are not expressly forbidden by the constitution, and in order to render them invalid they must come under the condemnation of some one of its provisions. The statute here under consideration does not in its terms provide for any notice and hearing, but specifies that the officer can be removed only after certain findings have been made by the county grand jury in respect to his conduct of the office. It does not forbid notice and hearing; and since undoubtedly, as so ably set forth in the opinion of Mr. Justice Grice, the right to such a hearing, in the absence of statutory regulation to the contrary, has always been recognized, it seems to me that there is no reason to believe that the legislature, which did not undertake in terms to forbid it, intended, in making the grand jury the triors, to preclude him from these rights so long established in the law of the land. It is my view, however, that under the prevailing and overwhelming authority, not only in Georgia but throughout the country, the legislature could have withheld this right. As said in an authority quoted in the opinion, “due process” and “the law of the land” may mean very much the same thing. It is still true, however, that the due-process clause protects only life, liberty, and properly j and in order to bring this public officer within its protection, the court has had to hold that there was a property right in the office-holder in respect to the office. To this I can not subscribe. Coleman v. Glenn, 103 Ga. 458 (supra), if it be taken in the full force of its language, sustained that view; but, as pointed out in the opinion of Justice Grice, this court in Gray v. McLendon, 134 Ga. 224 (supra), did not consider that that holding was required on the questions under consideration, and declined to adopt it. It seems to be clearly against the weight of authority both in Georgia and elsewhere.