Copland v. Wohlwender , 197 Ga. 782 ( 1944 )

1. A motion to dismiss a bill of exceptions by one, not a party to the case in the court below, can not be considered by this court.

2. Under article 6, section II, paragraph 1 of the constitution (Code, § 2-3901), providing for the appointment and election of solicitors-general, the general election of August 3, 1943 (Ga. L. 1943, p. 535), was such an election as authorized the election of a solicitor-general to fill out an unexpired term, the Governor having previously made an appointment to fill the office.

3. An incumbent in a public office has no such vested right as will entitle him to complain of legislation affecting the office upon the ground that it is retrospective, where no other right under the constitution is violated.

4. Where there is a conflict between a Code section and the constitution, the provisions of the constitution are fundamental and controlling.

5. The general election of August 3, 1943, was an election at which an officer to be elected at an election not designated otherwise than as a "general election," could be legally elected.

No. 14833. MAY 3, 1944. REHEARING DENIED JUNE 9, 1944. Arthur Copland brought quo warranto proceedings, claiming the office of solicitor-general of the Chattahoochee judicial circuit. Hubert Calhoun had been the regularly qualified and commissioned solicitor-general of the Chattahoochee circuit for the four-year term ending January 1, 1945. He resigned on November 18, 1942, and his resignation was accepted by the Governor on November 19, 1942. Ed Wohlwender Jr. was appointed by the Governor on November 23, 1942, and the Governor issued a commission to him, stating that it expired on January 1, 1945; and since said appointment Wohlwender has held, and is now holding the office. Copland qualified in the election held on August 3, 1943, and had his name placed on the ballot as a candidate for the office of solicitor-general of the Chattahoochee circuit for the unexpired term. He received 21, 171 votes out of a total of 26,206 votes cast in the election for this office. The secretary of state certified the result of the election to the Governor. On December 28, 1943, Copland subscribed and filed the oath of office, and on the same date the Governor issued to him a commission for the term beginning January 1, 1944, and ending January 1, 1945. Copland possessed all the qualifications required of a solicitor-general under the constitution and laws of Georgia. On January 1, 1944, Copland demanded of Wohlwender that he vacate the office and turn all official records of said office over to him. Wohlwender refused and continued to hold the office.

Wohlwender filed a general demurrer to the proceedings, which the court sustained. Copland excepted to that judgment. 1. Monroe Stephens filed in this case a "motion to dismiss the alleged bill of exceptions." The motion is based upon certain contentions with reference to the manner in which the bill of exceptions was served. The motion contains the contention that "Monroe Stephens was a party to the case below." The record fails, however, to disclose that he was in any manner such a party. In fact, his name does not appear anywhere in the record except in the motion to dismiss. Therefore, according to the record, he was not and is not a party to this case, and his motion to dismiss cannot be considered.

2. Copland, the plaintiff in error, claims title to the office under the contention that he was elected thereto at the general election of August 3, 1943. Wohlwender, the defendant in error, claims title by virtue of his appointment by the Governor, made on November 23, 1942, to fill a vacancy caused by the resignation of the then incumbent solicitor-general.

Article 6, section 11, paragraph 1, of the constitution of Georgia (Code, § 2-3901) provides: "There shall be a solicitor-general for each judicial circuit, whose official term (except to fill a vacancy) shall be four years. The successors of present and subsequent incumbents shall be elected by the electors of the whole State, qualified to vote for members of the General Assembly, at the general election held next preceding the expiration of their respective terms. Every vacancy occasioned by death, resignation, or other cause shall be filled, by appointment of the Governor, until the first day of January after the general election held next after the expiration of 30 days from the time such vacancy occurs, at which election a successor for the unexpired term shall be elected: provided, that the successors for all incumbents whose terms expire on or before the first day of January, 1899, shall be elected by the General Assembly at its session for 1898, for the full term of four years." Under this provision of the constitution there can be no question about the proposition that, when a solicitor-general resigns, the Governor is authorized to make an appointment. The question is, how long or until what time does the person thus appointed hold office? The answer to this question is to be found in the above-quoted provision of the constitution, "until the first day of January after the general election held next after the expiration of 30 days from the time such vacancy occurs." In the instant case, this date would be January 1, 1944, provided the election held on August 3, 1943, was a general election; and provided further it was a general election at which a solicitor-general could be elected to fill a vacancy caused by resignation.

The act of the legislature under which the election of August 3, 1943, was held provides, so far as is here pertinent, as follows: "Section 1. In addition to the general election created under and by virtue of an act approved August 14, 1914 (Acts 1914, pp. 47-48), there is hereby created and established a State-wide general election to be known as the August general election, which shall be held biennially on Tuesday after the first Monday in August, beginning on the above date in 1943, which election shall be held in the same manner, with the same formality, and in accordance with all rules and regulations in existence in holding the November general election, and which August general election shall be held in every county and every militia district therein in the State for the purpose hereinafter specified in detail in this act. Section 2. The August general election herein created is hereby designated as being the election in which vacancies shall be filled in any and all State and county offices, which vacancies may have occurred by reason of the death or resignation of the incumbent or nominee therefor, or otherwise, since the last preceding general election, except that special elections to fill vacancies may still be held under and pursuant to Chapter 34-17 of the 1933 Code of Georgia, whenever such special election may be more expedient, and may best serve the interest of the State or any county thereof, by filling any such vacancy at an earlier date than is provided for in this section." Ga. L. 1943, p. 535. Whether or not the election provided for in the above-quoted act was a general election, has been settled by this court. In 1937 the General Assembly enacted a law providing for a general election in June. Ga. L. 1937, p. 712. The language in the act of 1937 is identical with that in the act of 1943, now under consideration, except as to the date of holding the election. In Aycock v. State exrel. Boykin, 184 Ga. 709, 718 (193 S.E. 580), after a very thorough discussion, this court said: "In the light of what has been said, the election held under the provisions of the above-quoted act is a general election within the meaning of the constitution."

We now consider whether or not the general election of August, 1943, was such a general election as authorized a solicitor-general to be elected to fill out an unexpired term, the Governor having previously made an appointment to fill the office. The general policy of the law of this State is that the office of solicitor-general is an elective office; an appointment made by the executive shall be for such period of time only as is necessary to fill the office until the people can legally elect a solicitor-general. The constitutional provision first quoted in this opinion limits the term of an appointee of the Governor to fill a vacancy in this office to that period of time from the date of appointment until the first day of January after the general election held next after the expiration of 30 days from the time such vacancy occurs, "at which election a successor for the unexpired term shall be elected." There seems to be no attempt in this constitutional provision with reference to solicitors-general to identify or designate any general election at which "present and subsequent incumbents" shall be elected, except the general election held "next preceding the expiration of their respective terms." Likewise there is no attempt to identify or designate any general election, at which a successor shall be elected in case of a vacancy, other than "the general election held next after the expiration of 30 days from the time such vacancy occurs." This is not true, as we shall point out later in this opinion, as to other elective officials, considered by this court in cases heretofore considered when the law now under consideration was construed. The election of August 3, 1943, was a general election. Was the general election held next after the expiration of 30 days from the date a vacancy occurred in the office of the solicitor-general of the Chattahoochee circuit? The petition alleged that Copland was the successful candidate. All this being true, as must be conceded as against a general demurrer, Copland was entitled to the office as of January 1, 1944.

3. It is contended by the defendant in error that the August general-election law applies to filling vacancies in office, and that since the Governor had filled the vacancy by appointment there was no vacancy. The answer to this contention is that the Governor generally appoints to fill a vacancy in office. Elections fill vacancies in term. This distinction is clearly made by the opinion of Justices Bell, Jenkins, and Grice in the case ofMitchell v. Pittman, 184 Ga. 877 (194 S.E. 369).

It is further contended in the brief of the defendant in error, "that to give it (the act of 1943) the construction which will support the relator's claim to the office, will make it retrospective in operation, and this should not be done unless the language used imperatively requires it." There is no merit in this contention. The law in this State is well settled that an incumbent in a public office has no such vested right as will entitle him to complain of legislation affecting the office, upon the ground that it is retrospective, where no other right under the constitution is violated. We deem it necessary to cite only a few of the many decisions of this court to this effect. SeeCollins v. Russell, 107 Ga. 423 (33 S.E. 444); Mills v.Geer, 111 Ga. 275 (36 S.E. 673, 52 L.R.A. 934); Gray v.McLendon, 134 Ga. 224 (67 S.E. 859); City of Darien v.Clancy, 167 Ga. 848 (146 S.E. 767).

4. It is insisted that the Code, § 24-2903, is controlling. This section provides that "vacancies occur and are filled as prescribed in cases of the judges of the superior courts, and the manner of proceeding is in every respect the same." This section of the Code is a part of the chapter dealing with solicitors-general. If this Code section is in conflict with the provisions of the constitution relative to filling vacancies in the office of solicitors-general. it must yield to the constitution. "The provisions of the constitution are fundamental and controlling." Wood v. Arnall, 189 Ga. 362 (6 S.E.2d 722). Therefore this Code section is not applicable to the case under consideration.

5. The defendant in error argues that this case is controlled by the decisions in Mitchell v. Pittman, supra, Wood v.Arnall, supra, Stephens v. Reid, 189 Ga. 372 (6 S.E.2d 728), and Brackett v. Etheridge, 190 Ga. 216 (9 S.E.2d 275). In Mitchell v. Pittman, where the court was evenly divided in opinion, the facts were altogether different from the facts in the instant case, as will appear by reference to those set forth in the present opinion. The office there dealt with was that of a superior court judge. Brackett v. Etheridge, was likewise a case dealing with the office of the judge of the Superior Court. This court in those cases dealt with art. 6, sec. 3, par. 2, of the constitution (Code, § 2-3102). providing that, "The successors to the present and subsequent incumbents shall be elected by the electors entitled to vote for members of the General Assembly of the whole State, at the general election held for such members, next preceding the expiration of their respective terms;" and with art. 6, sec. 3, par. 3 (Code, § 2-3103), providing that, "Every vacancy occasioned by death, resignation, or other cause shall be filled by appointment of the Governor until the first day of January after the general election held next after the expiration of thirty days from the time such vacancy occurs, at which election a successor for the unexpired term shall be elected." It was there held that, when these provisions are construed together, they give to the language, "the general election held next after the expiration of thirty days from the time such vacancy occurs," the meaning, a "general election" held for the election of members of the General Assembly. This excluded the June election there under consideration.

The office under consideration in Wood v. Arnall was that of attorney-general. In that case this court said: "Article 6, section 10, paragraph 1, of the constitution of this State (Code, § 2-3801) provides that there shall be an attorney-general of this State, who shall be elected by the people at the same time, for the same term, and in the same manner as the Governor. Under this provision, considered with the constitutional amendment of 1932, as to inauguration of Governor and statehouse officers, whose terms run concurrently with that of the Governor (Code, § 2-1503), the regular method of electing an attorney-general would include ascertainment and declaration of the result by the General Assembly as provided by the constitution for election of Governor." This excluded the June election there under consideration.

The office under consideration in Stephens v. Reid was that of Chief Justice of the Supreme Court of Georgia. This court said: "As we have pointed out, if no vacancy exists in the office of Chief Justice and the Associate Justices of this court, they are elected by the people at the same time and in the same manner as the Governor and the statehouse officers are elected. The day of holding such election shall be the Tuesday after the first Monday in November in the even-numbered years. Code, §§ 34-1301, 34-1302, 40-101, 40-501, 40-901, 40-1401, 40-1601." Thus the June election was excluded.

The cases relied on by the defendant in error were all bottomed upon the proposition that the term "general election," when used to designate the general election at which a vacancy in office should be filled by an election, after the executive had made an appointment, should be construed to mean a general election at which the officer in question could be regularly elected if no vacancy occurred. The June election then under consideration was held not to be such an election, because superior court judges could be elected only at elections when members of the General Assembly were elected; and the Attorney-General and the Chief Justice of this court could be elected only at the time when the Governor and statehouse officers are elected. As we have pointed out, this is not true as to solicitors-general. The election at which these officers may be elected is simply a "general election," without any effort to designate any particular general election. The August election now under consideration was a general election. If we should construe the "general election" at which a successor can be elected to fill a vacancy in the office of solicitor-general to be limited to the general election "next preceding the expiration of their respective terms," such a narrow construction of this language would have the effect of rendering meaningless the provision of the law for the election of a successor to a solicitor-general in case of a vacancy in office. This is true for the reason that such a construction would mean that in no event could there be an election to fill a vacancy in the office of solicitor-general until the November next preceding December 31st of the year when the expiration of the term in office to be filled occurs. We think that the language, "next preceding the expiration of their respective terms," was intended to designate the election at which solicitors-general should be elected for the full term of four years, and was not intended to designate the general election at which a successor should be elected in case of a vacancy.

It follows that a vacancy in the office of solicitor-general, such as is now under consideration, was properly submitted to the voters at the general election held on August 3, 1943; and that the successful candidate in this election was entitled to the office from January 1, 1944, to January 1, 1945.

The judgment sustaining the general demurrer was error.

Judgment reversed All the Justices concur, except