Under the act of 1913 (Ga. L. 1913, p. 148), the Governor is empowered only to appoint a judge of the Civil Court of DeKalb County for a regular four-year term. Where, as here, a term began on January 1, 1946, the Governor's appointment of one as judge on May 10, 1946, for such term was authorized by the act and entitled the appointee to possession of the office upon his taking the oath of office.
(a) A previous nomination on January 3, 1946, by the judge of the Superior Court of DeKalb County was not the equivalent of an appointment; and the subsequent nomination on May 9, 1946, of another by the Superior Court judge was tantamount to withdrawing the first nomination, and the appointment by the Governor on May 10, 1946, of such person nominated on May 9, 1946, amounted to consent by the Governor to such withdrawal.
(b) The act does not limit the judge of the Superior Court to the nomination of only one person at a time, and his inclusion with the person subsequently appointed by the Governor of three other nominees from whom the Governor should choose one did not render void the nomination made by the judge on May 9, 1946.
No. 15626. NOVEMBER 15, 1946. REHEARING DENIED DECEMBER 2, 1946.
J. Hugh Rogers filed an application for leave to file an information in the nature of quo warranto in DeKalb Superior Court against Augustus M. Roan, alleging in the application and information that the applicant was a citizen and taxpayer of the City of Atlanta and DeKalb County, and had been engaged continuously in the practices of law for a period of more than two years; that he was entitled to the office of judge of the Civil Court of DeKalb County because he, along with three other named lawyers, was nominated on May 9, 1946, by the judge of the Superior Court of DeKalb County for said office for the term beginning January 1, 1946, and expiring January 1, 1950; that on May 10, 1946, he was appointed and commissioned as judge of said court by the Governor of the State before whom he immediately took the oath of office. The information further alleged that Rogers was the duly and legally qualified judge of the Civil Court of DeKalb County; that Judge Roan, whose term expired on December 31, 1945, continued to occupy the office as a holdover and had refused the demand of the relator for possession of the office, which demand was made at the courthouse on May 10, 1946, and the Judge Roan was ineligible to hold the office because his term had expired, and he was also ineligible because he did not reside in that part of DeKalb County embraced within the City of Atlanta as required by law. The prayers were for process, requiring Judge Roan to show cause why he should not be ousted and Rogers held to be the rightful holder of the office. The judge of the Superior Court approved the application and ordered the information filed,
and directed Roan to show cause as prayed, and upon disqualifying himself ordered the case referred to Judge Pomeroy of Fulton Superior Court. Judge Roan filed a written motion to vacate and set aside the order granting leave to file the information upon numerous grounds, including one that the application was not verified. The relator had allowed amendments both to the application and the information which positively verified them. Roan demurred to the application and the information on numerous grounds, and his counsel in this court states in his brief that the motion raises the same points as are raised by the demurrers, and that a decision on the demurrers will determine the exception to the ruling on the motion. The demurrers were both renewed after the relator had amended, demurring to the application and the information as thus amended. Roan filed answers to both the application and the information denying the allegations thereof, and in answer to the information he further pleaded that he was appointed to the office involved originally in 1935 by the judge of the Superior Court and Governor Talmadge; that he was again nominated by the judge of the Superior Court of DeKalb County, and appointed and commissioned by Governor Rivers in 1937; that he was nominated for the same office by the same judge on December 22, 1941, and appointed and commissioned by Governor Talmadge; that on January 2, 1946, the judge of the Superior Court of DeKalb County, by a writing addressed to Governor Arnall nominating the respondent judge of the Civil Court of DeKalb County for a four-year term commencing on January 1, 1946, advised the Governor in said instrument that the previous term of said office expired at the end of the year 1945. The said nomination was delivered to the Governor on January 3, 1946, and the judge of the Superior Court has at no time withdrawn the said nomination of the respondent for judge of the Civil Court of DeKalb County, and the same remains of file in the executive office of the State; that no official action thereon has been taken by the Governor. Then the response sets out verbatim a number of written communications between the Governor and the judge of the Superior Court of DeKalb County, in which the Governor requested additional nominations for consideration for the office, and the judge replied that Roan had occupied the office approximately thirteen years, and there had been no complaint concerning his
qualification or character, and that he would be reluctant to nominate any other person. To this the Governor replied that for the judge to submit only one name would deny the Governor the right or privilege to choose, but would permit the judge to dictate the appointment. Finally the Governor wrote a letter, calling his attention to the requirement of the law that the judge reside in the City of Atlanta and DeKalb County, and that Roan did not reside in the City of Atlanta. On February 15, 1946, the judge of the Superior Court requested the respondent to move his residence into the City of Atlanta, and the respondent refused the request. Then is set forth a communication dated May 9, 1946, signed by the judge of the Superior Court, and mailed to the Governor, acknowledging receipt of the Governor's letter calling attention to the fact that the respondent did not reside in the City of Atlanta, and stating that he had found that the respondent did not reside in the City of Atlanta and had indicated that it was not his intention to move within the city. Then he said "I, therefore, submit the following names of attorneys at law living in the City of Atlanta in DeKalb County whom I believe to be qualified for the position of judge of the Civil Court of DeKalb County: Hon. Homer C. Denton; J. H. Kennerly; J. Hugh Rogers; R. M. Wright." Then the response sets forth a letter addressed to the judge of the Superior Court, signed by the Governor, dated May 10, 1946, which acknowledged receipt of the letter from the judge dated May 9, 1946, submitting "nominations for judge of the Civil Court of DeKalb County," and then stating that the Governor had from the list appointed Hon. J. Hugh Rogers. The response then alleges that the communications from the judge to the Governor, sending four names, including that of the relator, was not a nomination, in that the judge is under the law authorized to make only one nomination, and that at the time this communication was sent to the Governor the judge had already nominated the respondent, which nomination stood unrevoked and was of file in the office of the Governor awaiting the action of the Governor thereon; that the action of the Governor in appointing and commissioning the petitioner, based upon such a nomination, was illegal and void. The response then proceeds to attack the constitutionality of the appointment of the relator and the act creating the Civil Court of DeKalb County insofar as it attempted to render ineligible to
hold the office of judge lawyers otherwise qualified and residing within the area in DeKalb County over which the Court had been given limited jurisdiction but not embraced within the corporate limits of the City of Atlanta. The response alleges that there has been no vacancy in the office here involved, and that the respondent has, since January 1, 1946, to the date of filing the response, continued to act as judge of the court and to carry out all the duties of such judge, and has continued in possession and in charge of all books and records pertaining to the office, and that it is his intention to continue to retain possession of the office, books and records and to perform the duties of judge unless it be adjudicated that he is not entitled thereto.
The relator demurred to the response of the respondent. On August 10, 1946, after hearing arguments, the court overruled the motion to set aside the order granting leave to file the information and the demurrers to the application for leave and the information in the nature of quo warranto as amended, sustained the demurrers of the relator to the response, and struck the answer and response of the respondent. On August 14, 1946, the trial court entered final judgment as follows: "This case came on regularly to be heard, and after demurrers to the application for permission for leave to file information in the nature of quo warranto as amended, to the information in the nature of quo warranto as amended, and to the answer or response of respondent, were disposed of on the record there were no disputed issues of fact. It having been made to appear to the court from the record that the term for which the incumbent and respondent, Augustus M. Roan, was last commissioned as the judge of the Civil Court of DeKalb County expired on December 31, 1945, except that said respondent was authorized to continue in said office until his successor was nominated, appointed and commissioned; and that respondent's successor, the relator herein, was duly nominated, appointed and commissioned on May 10, 1946, for the remainder of the term January 1, 1946, to January 1, 1950, in accordance with law; that relator is and was in all respects qualified and eligible to hold the office of judge of the Civil Court of DeKalb County, and that respondent is not now and has not been entitled to hold said office since May 10, 1946. It is therefore ordered, adjudged and decreed that the respondent be, and he is hereby ousted from office
and directed to forthwith and immediately deliver said office to relator, J. Hugh Rogers, together with all of the books and papers, property and other things in any wise belonging or appertaining to said office as provided in C. S. 64-202 and to cease from continuing to act as judge of the Civil Court of DeKalb County. On application of respondent, supersedeas is hereby granted for a period of seven days from the date of this order."
The respondent excepted, assigning error upon the final judgment and upon the judgment upon each demurrer and the motion to set aside.
The bill of exceptions contains about ten specific assignments of error, and some of these are exceptions to rulings on a written motion and demurrers, all of which involve many separate grounds, thus making a case which on the face of the record fairly bristles with legal questions for decision. However, when the record has been fairly read and analyzed, it is found that the entire case turns upon one central legal proposition, and a decision on this controlling question will be decisive on all the others. Succinctly stated the question is: Did the act (Ga. L. 1913, p. 148) as amended empower the Governor to appoint a judge of the Civil Court of DeKalb County on May 10, 1946, while the judge, whose regular term expired on December 31, 1945, was occupying the office as a holdover, for the four-year term as fixed by the act, which began on January 1, 1946, and ends on December 31, 1949? The language of the act relative to this question is found in section 7 thereof, and is as follows: "Be it further enacted by the authority aforesaid, that the Judges of the DeKalb Section of the Municipal Court of Atlanta, shall serve for four years each and shall be nominated by the judge of the Superior Court of DeKalb County, and appointed and commissioned by the Governor of the State of Georgia, and their successors shall be nominated and appointed in like manner and shall hold for like terms." We observe that the method for providing a judge of the court is prescribed by the act, and resort may not be had to any other method for that purpose. Furthermore, the authority therein conferred upon the Governor to make the appointment is the sole authority
of the Governor for doing so, and any such appointment made by the Governor to be legal must conform to the requirements of the act. The act provides for a succession of judges at intervals of four years and thus fixes the term at four years. The only authority therein conferred upon the Governor to appoint the judge is that which empowers him to make an appointment for a four-year term after his appointee has been nominated by the judge of the Superior Court of DeKalb County. This observation should put at rest any contention or claim that by this act the Governor is authorized to make an appointment for any term except a four-year term as therein provided. By the general law, Code, § 89-105, the regular appointed judge of the court would be required to continue to occupy the office after the expiration of his four-year term as a holdover until his successor is appointed and qualified. While by the Constitution of 1945, article 5, section 1, paragraph 13, and by the statute, Code, § 40-301, the Governor is required to fill vacancies in office by appointment, this requirement does not extend to or embrace filling a vacancy in term, but has reference solely to filling a vacancy in office. There was no vacancy in office here when Rogers was appointed on May 10, 1946, since Roan was occupying the office as a holdover as required by the law. Shackelford v. West, 138 Ga. 159
(74 S.E. 1079); Lee v. Byrd, 169 Ga. 622 (151 S.E. 28);Minter v. Lane, 173 Ga. 756 (161 S.E. 580). There was and had been a vacancy in the term since January 1, 1946. Mitchell
v. Pittman, 184 Ga. 877, 896 (194 S.E. 369). It was held inShackelford v. West, supra, that the period beyond his fixed regular term during which the office was occupied by the holdover was as much the regular term of the occupant as was the portion fixed by law. This would cause it to appear that when Judge Roan, in obedience to the law, occupied the office here involved during the year 1946, which was a part of the new term as fixed by the act, and thus caused this portion of the new term to become a part of his term, either one of two results followed, to wit, only an unexpired portion of the new term remained to be filled or the arrangement of the regular term as fixed by the act was thereby changed, causing the term to start in May instead of January. We think, however, that such reasoning overlooks the fundamental and follows an impractical theory. The act leaves no room for doubt but that the legislative intent was to fix unchangeably
terms of four years each as the periods for succession in office. This legislative plan was not to be upset when circumstances brought into operation applicable general law designed to avoid a vacancy in office because of a failure to appoint in time a successor to a judge whose term had expired. It is unimportant whether the holdover period be a part of the term of the judge holding over or a part of the new term as fixed by law. The important question is whether Rogers was appointed and qualified as provided by the act for the term which began on January 1, 1946. Counsel for Roan make the argument here that since Judge Roan was first nominated by the judge of the Superior Court of DeKalb County, as provided by the act, on January 3, 1946, and this nomination was never withdrawn by the judge or acted upon by the Governor and was still pending of file in the Governor's office on May 9, 1946 when the Superior Court judge admittedly nominated Rogers, such attempt did not amount to nomination as required by the act, and, hence, the Governor was without authority of law to appoint Rogers on May 10, 1946. Counsel further contend that when properly construed the act means that the nomination by the Superior Court judge amounts to appointment, and that it is a mere ministerial act on the part of the Governor in commissioning such nominee, and that, therefore, the nomination of Judge Roan on January 3, 1946, was an appointment under the law, and that Judge Roan thereby acquired title to the office for the entire new term of four years. The further contention is made that the act does not authorize the trial judge to nominate more than one as was done in the case of Rogers where four nominations were sent to the Governor at the same time, and that for this reason the attempt to nominate Rogers was invalid and void. A mere glance at the correspondence passed between the Superior Court judge and the Governor, which is set out in full in the response, reveals unmistakably that the Superior Court judge did, on May 9, 1946, withdraw the nomination of Judge Roan, and that the Governor did, on May 10, 1946, consent to such withdrawal. Further discussion of this question would be useless here. It is also quite clear that the act places no limitation upon the number of names which the Superior Court judge may submit to the Governor for his consideration and from whom the Governor may select one to appoint as judge. To construe the act to limit the trial judge to
one nominee would give to the law a meaning that would deprive the Governor of any choice or judgment whatever and confer upon the trial judge absolute power in naming the judge of the Civil Court of DeKalb County. The plain language of the act refutes the contention that the nomination of Judge Roan on January 3, 1946, was the equivalent of an appointment and vested him with the title to the office for the new term. To thus construe the act would eliminate the provisions thereof that the judges of the court shall be nominated by the judge of the Superior Court and "appointed and commissioned by the Governor of the State of Georgia." The law will not yield to such distorted construction. Finally it is contended that since the act places upon the Governor the authority to appoint only for a four-year term, of necessity this requires that such appointment be made before the beginning of such term, since this is necessary in order that the appointee may occupy the office for the four-year term as prescribed by the statute, and that since the appointment of Rogers was made during the term after several months thereof had expired it was unauthorized by the act and was ineffectual to vest Rogers with the title to the office. This argument admittedly is persuasive and in a measure logical, but it fails to take account of the existing general law providing for holdover, with which it must be assumed that the legislature intended that the present act conform, and, hence, the two must be construed in pari materia. We are not without the benefit of precedent on the point now under consideration. In a case where the vital and fundamental facts were substantially the same as those with which we are now dealing this court upheld as valid an appointment during a fixed four-year term. Milton v.Mitchell, 139 Ga. 614 (77 S.E. 821). It is true, as contended by counsel for the respondent, that there were some facts in the case just cited that differed from some of the facts in the present case. In that case there was no incumbent holding over, while here we have an incumbent holding over. That case involved the first term under the act. The term here is not the first term under the present act. In that case all the four-year terms subsequent to the first four-year term were to be filled by an election, while here each four year term must be filled by appointment. The points in common, however, which go to the very bottom of the case are that in each case the terms were fixed at exactly four years. In each case the term involved was a four-year term,
which the law provided must be filled by appointment, and the appointing power conferred by each statute was expressly restricted to an appointment for a term of four years, and in each case the appointment which was brought in question and challenged as invalid was one made some time after the beginning of the four-year term for which it was made. The decision there held the appointment legal and valid and requires a ruling here that the appointment of Rogers was legal and valid. While in that case at the time of the appointment which was held valid the office was not occupied by a holdover from a previous term, it was occupied by an appointee of the Governor, and such appointee was entitled to continue in the office until a successor was legally appointed and qualified. In the present case Judge Roan was under the law entitled to occupy the office and to continue such occupancy until Rogers was legally appointed and qualified, and at that point it was his duty to yield possession of the office, and his continued occupancy was unauthorized under the law.
The application to file and the information in the nature of quo warranto and the answers of the respondent showing the facts as recited in this opinion, the application to file and the information were not subject to demurrer, and the responses presented no defense and were subject to demurrer. While the relator's application must be verified (Harris v. Pounds,66 Ga. 123; McWilliams v. Jacobs, 128 Ga. 375,57 S.E. 509), this can be done by amendment. Shaw v. DeVane,169 Ga. 702 (151 S.E. 347). There was no error in overruling the demurrers of the respondent and the motion to set aside the order allowing the information to be filed and in sustaining the relator's demurrer to the response. The facts alleged in the information were not disputed by the respondent after the response was stricken, and, hence, there were no issues of fact which under the Code, § 64-205, must be tried by a jury, and under Code, §§ 64-203 and 64-204, it was proper for the trial judge to enter judgment on the pleadings. The facts demanded the judgment rendered except that the language in the judgment might require more of the respondent than is required of him under Code, § 64-202. Accordingly, the judgment is affirmed with direction that it be modified so as to conform with the provisions of Code, § 64-202.
Judgment affirmed, with direction. All the Justices concur.