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PARKER et al. v. DAVIS et al.
Quo warranto. Long Superior Court. Before Judge Usher from Ogeechee Circuit.
HEAD, Presiding Justice.
The trial judge did not err in sustaining the general demurrers of the respondents.
Herman Parker and four other named persons, as citizens and taxpayers, made application to file an information in the nature of quo warranto to inquire into the right of W. B. Davis and five other named persons to hold office as Jury Commissioners in Long County. The Judge of the Superior Court of Long County, the Honorable Henry H. Durrence, entered an order certifying his disqualification and referring the cause to the Honorable Walton Usher, Judge of the Superior Courts of the Ogeechee Circuit. Judge Usher granted the application, and ordered that the respondents be served and that they show cause at a stated time why the prayers of the realtors should not be granted.
The information of the realtors asserted that the respondents had been appointed as Jury Commissioners of Long County under authority of an act of the General Assembly approved January 29, 1962 (Ga. L. 1962, pp. 6-8). It was alleged that the act was "in the nature of local or special legislation," and that it was unconstitutional and void for stated reasons.
A copy of the order of the judge of the superior court removing the former jury commissioners and appointing the respondents as jury commissioners was attached to the petition as an exhibit. In this order the judge first stated that he was naming the respondents as jury commissioners in compliance with the 1962 act (Ga. L. 1962, pp. 6-8). Thereafter, in the same order, the former commissioners were removed and the respondents named as successor commissioners under the provisions of the general law. It was recited that the last revision of the jury list in Long County had caused much criticism, it being contended that the revision was incomplete and biased, and that many qualified persons were left off of the list; and that it was of vital importance that the jury list be revised. It was then ordered that the terms of the Jury Commissioners of Long County be terminated and their offices declared vacant, and that the respondents be designated, appointed, and commissioned as Jury Commissioners for Long County to succeed those whose terms of office had been terminated.
The general demurrers of the respondents were sustained and the proceedings dismissed. The exception is to that judgment.
1. The general law of this State with reference to the appointment of jury commissioners provides: "The judge shall have the right to remove said commissioners at any time, in his discretion, for cause, and appoint a successor: Provided, that no person shall be eligible or appointed to succeed himself as a member of said board of jury commissioners." Code 59-101, as amended, Ga. L. 1935, p. 151.
"The provision in the statute that the judge shall remove a jury commissioner at any time within his discretion for cause was never intended to require that there should be a trial upon notice; because in the nature of the case, if the removal be limited to specified cause, then there would be no room for the exercise of any discretion. The legislative intent is clear that the power of removal was lodged with the judge as an act of discretion; the addition of the words 'for cause' being simply admonitory that this discretion should not be arbitrarily or capriciously exercised. The judge is to determine whether the proper administration of the law requires a change of commissioners; and if he reaches that conclusion, then the statute confers upon him the discretion to remove the jury commissioner, and that, too, without any notice or trial." Edge v. Holcomb, 135 Ga. 765, 767 (70 SE 644); Carter v. State, 143 Ga. 632, 637 (85 SE 884).
The judge of the superior court having been authorized under the statutory law and the decisions of this court to remove the board of jury commissioners in the County of Long and appoint another board, it is clear that the realtors' information was without merit, and it was properly dismissed on general demurrer.
2. The judge of the superior court having acted under the valid provisions of the general law of this State in the removal and appointment of jury commissioners in Long County, it is not necessary to determine the constitutionality of an act which purports, on the basis of a classification limited to one county, to grant authority pertaining to the appointment and removal of jury commissioners varying the provisions of the general law. However, in this connection see: Stewart v. Anderson, 140 Ga. 31 (78 SE 457); Christian v. Moreland, 203 Ga. 20 (45 SE2d 201); Smith v. City Council of Augusta, 203 Ga. 511 (47 SE2d 582); Hasty v. Hamrick, 205 Ga. 84 (52 SE2d 470); Walden v. Owens, 211 Ga. 884 (89 SE2d 492).
Judgment affirmed. All the Justices concur.
J. T. Grice, Ralph Dawson, contra.
Thomas A. Parker, Parker & McGee, for plaintiffs in error.
ARGUED MARCH 12, 1963 -- DECIDED APRIL 4, 1963.
Friday May 22 22:26 EDT

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