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Lawskills.com Georgia Caselaw
CONLEY et al. v. BROPHY et al.
17109.
Quo warranto. Before Judge Graham. Dodge Superior Court. March 11, 1950.
WYATT, Justice.
1. Whether there were questions of fact that should have been submitted to a jury, is not presented in this case.
2. A term of office fixed by statute cannot be changed by the appointing power.
3. The power to inquire into the right to hold public office is vested in the courts of this State.
J. G. Brophy, J. C. Dowdy, J. E. Walker, and John Pickren filed a quo warranto proceeding in Dodge Superior Court, naming Junior Conley, George Stuckey, Dalt Burnham, and Tom Hilliard as respondents, seeking to inquire into the right of the respondents to hold the offices of Trustees of the Rhine School District. On the trial of the case, it appeared that on July 8, 1947, the Dodge County Board of Education appointed J. H. Martin, J. C. Dowdy, and J. E. Walker as local Trustees of the Rhine School District for one year. On April 13, 1949, J. H. Martin, Junior Conley, Dalt Burnham, Tom Hilliard, and George Stuckey were appointed for "two years or whatever constitutes a regular term." On May 3, 1949, J. H. Martin, J. C. Dowdy, J. G. Brophy, John Pickren, and J. E. Walker were appointed for one year. May 10, 1949, J. H. Martin, Junior Conley, Dalt Burnham, Tom Hilliard, and George Stuckey filed an appeal to the State Board of Education from the action of the Dodge County Board of Education dated May 3, 1949. The Dodge County Board of Education passed a resolution rescinding its actions of May 3, 1949, and April 13, 1949, and requested the State Board of Education to remand the questions raised in the appeal to the county board in order that a hearing might be had between the two sets of claimants to the offices. On June 7, 1949, at a regular meeting of the County Board of Education, at which time the State Board of Education had not remanded the questions contained in the appeal, the county board adopted a resolution reciting that J. H. Martin, J. C. Dowdy, J. G. Brophy, John Pickren, and J. E. Walker had been appointed Trustees of Rhine School District for a term of four years, at a regular meeting of the county board in November, 1948, and, that this action had inadvertently been omitted from the minutes of that meeting, and resolved that the minutes of the November, 1948, meeting be amended to show this action. On September 15, 1949, the State Board of Education reversed the action of the County Board dated May 3, 1949, and ordered the action to be null and void, and ordered the action of April 13, 1949, to be the official actions of the county board. September 17, 1949, the county board at a meeting declined to accept the ruling of the State board. October 4, 1949, the county board at a regular meeting, by resolution, accepted the ruling of the State board, and ordered commissions to be issued to J. H. Martin, Junior Conley, Dalt Burnham, Tom Hilliard, and George Stuckey for
terms of four years, and repealed its action of June 7, 1949.
At the conclusion of the evidence, the trial court directed a verdict in favor of the relators J. C. Dowdy and J. E. Walker as trustees for a term of four years, beginning July 1, 1947; and held that vacancies existed in the other two places for trustees, and that all other appointments as trustees subsequently to July 8, 1947, were void, there being no way of determining who filed what office of the Rhine School District Trustees. A motion for new trial on the general grounds only was filed, and duly denied. The exception is to this judgment.
1. The motion for new trial having been based upon the general grounds only, the question that the direction of the verdict was erroneous because there were questions of fact that should have been submitted to the jury, is not presented for decision. See Tyson v. Anderson, 164 Ga. 673 (139 S. E. 410); Kerce v. Davis & Co., 165 Ga. 168 (140 S. E. 287); Gilliard v. Johnston & Miller, 161 Ga. 17 (129 S. E. 434).
2. The County Board of Education was authorized to appoint no less than three nor more than five trustees for the school district involved. See Ga. Code (Ann. Supp.), 32-1104. On July 8, 1947, they appointed three men, J. H. Martin, J. C. Dowdy, J. E. Walker, but attempted to limit their terms of office to one year. No question is presented in so far as J. H. Martin is concerned, since his name is included in all of the various orders of appointment. The question is presented, in so far as the other two are concerned, whether or not the County Board of Education can limit their terms of office to one year.
The Code section above cited expressly provides that the terms of office shall be for four years. "Where the term of an office is fixed by the Constitution, and the appointing power attempts to limit the term to a less time, the limitation will be disregarded as surplusage, and an appointee's acceptance under such an appointment will not estop him from claiming the entire term." 46 C. J. 965, 101. "It has been declared . . . that public policy forbids that the beginning and expiration of terms of officers be left to the discretion of the person holding the office or the body having the appointing power." 43 Am. Jur. 11, 150. "The tenure by which an office is held does not generally depend upon the commission which the Governor may think proper to issue . . . The statute and not the commission determines the commencement and ending of the term of such officer." Stephenson v. Powell, 169 Ga. 406, 408 (3) (150 S. E. 641). See also Motes v. Davis, 188 Ga. 682 (1) (4 S. E. 2d, 597, 125 A.L.R. 289).
We therefore hold that a term of office fixed by statute can not be changed by the appointing power. The effort made in the instant case to limit the terms of office of the three men appointed July 8, 1947, to one year was ineffective. When the appointments were made, they were made for a term of four years as required by the statute.
3. It is contended that the finding by the State Board of Education is binding on the court in this case. The Code (Ann. Supp.), 32-910 constitutes the County Board of Education a "tribunal for hearing and determining any matter of local controversy in reference to the construction or administration of the school law." It is provided in 32-414 that "The State Board of Education shall have appellate jurisdiction in all school matters which may be appealed from any county or city board of education, and its decisions in all such matters shall be final and conclusive."
Membership on a board of education is a public office. See Clarke v. Long, 152 Ga. 619 (111 S. E. 31); Townsend v. Carter, 174 Ga. 759 (164 S. E. 49). "The writ of quo warranto may issue to inquire into the right of any person to any public office the duties of which he is in fact discharging, but must be granted at the suit of some person either claiming the office or interested therein." Code, 64-201. Quo warranto, in so far as we know, has always been recognized by the courts of this State as the proper procedure for inquiring into the right to hold public office. We are not unmindful of the modern tendency to clothe boards and bureaus composed of men not trained in the law with judicial functions. This tendency we consider dangerous, and for this reason, the statutes will be strictly construed. We do not believe that the above-cited provision of the school law is intended to, or has the effect of, taking from the courts of this State the power to inquire into the right to hold public office and to confer this important power upon the school boards, composed of men not required to be trained lawyers. We therefore hold that the superior court did have the right and duty to try and determine the quo warranto proceeding in the instant case.
It follows, from what has been said above, that the only valid action of the County Board of Education was the order of July 8, 1947, and the judgment of the trial court was correct.
Judgment affirmed. All the Justices concur. Duckworth, C. J., concurs in the judgment only.
Will Ed Smith, contra.
A. Russell Ross, for plaintiffs in error.
DECIDED JUNE 12, 1950.
Saturday May 23 05:52 EDT


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