Hall v. Tarver

Evans, J.

R. P. Hall is the clerk of the superior court of Dougherty county, and for several years has also been discharging the duties of treasurer of that county, by virtue of the act approved February 28, 1876 (Acts 1876, p. 325), This act abolished the treasurer’s office and devolved the duties of the treasurer upon the clerk. of the superior court of the county of Dougherty, and provided for his compensation. At the last general election H. A. Tarver was elected treasurer, and he was duly commissioned as such. After-wards Tarver demanded of Hall all the moneys, hooks, and papers-in his custody, belonging to the county and pertaining to the office-of treasurer. Hall refused, and the treasurer filed a petition for leave to file an information in the nature of a quo warranto,' to try the title to the office of treasurer. Leave was granted, and in answer to the information the respondent based his right to discharge the-duties pertaining to the office of treasurer upon the legality of the local act above referred to. He denied the unconstitutionality of the act, and alleged that it had been pronounced constitutional by this court, in Hall v. Burks, 96 Ga. 622. The court entered a judgment of ouster, and directed the respondent to deliver to the relator' all the books, papers, and moneys which came into his custody as-treasurer of the county.

This controversy is determinable upon the constitutionality of the-local act abolishing the office of county treasurer in Dougherty county and consolidating it with that of clerk of the superior court. This act is unconstitutional, for the reasons stated in Morris v. Glover, 121 Ga. 751. The constitutionality of the same act was assailed in Hall v. Burks, supra, but this court held that the act was-not unconstitutional because of the matters alleged against it in that-case.' It is urged that the judgment of the court in Hall v. Burks-was res adjudicata on the subject of the constitutionality of the act.. The infirmity pointed out in Morris v. Glover, supra?, was not that-which the court passed on in Hall v. Burks. It is no objection to-an attack on a statute, because of its unconstitutionality for given, reasons, that the same statute had been held by the court not to be-unconstitutional for another reason. There was no issue of fact involved; the relator had been duly commissioned as county treasurer for the County of Dougherty; he was therefore entitled to discharge-the duties of the office, and receive the emoluments thereof. Accordingly, it was not error for the court to enter a judgment of’ ouster against the respondent and direct him to deliver to the relator all books, papers, and moneys in his custody connected with, the office of treasurer of Dougherty county.

Judgment affirmed.

All the Justices concur..