Georgia Department of Human Resources v. Sistrunk , 249 Ga. 543 ( 1982 )

Weltner, Justice.

This case began with the filing by the Sistrunks of a petition for a writ of habeas corpus directed to the Georgia Department of Human Resources. It comes to us, however, on a matter purely collateral to the relief sought.

The Sistrunks are represented by Bobby L. Hill, Jr., a member of the House of Representatives of the General Assembly of Georgia. The Department filed in the trial court a motion to disqualify Hill as attorney for the Sistrunks upon its assertion of conflict of interest. The trial court held hearing on the motion, and prepared, in his usual scholarly manner, a comprehensive order which denied the motion to disqualify Hill, the essence thereof being as follows: “As long as he earns that livelihood in a manner that does not conflict with his responsibilities as a member of the General Assembly, then he cannot be disqualified, under the Department’s fiduciary theory, from practicing his profession for compensation before a unit of the Executive or Judicial branch of government.”

The Department appealed, urging that Hill’s representation, ipso facto, runs afoul of Art. I, Sec. II, Par. I, of the Constitution of Georgia of 1976 (Code Ann. § 2-201), which states in part: “Public officers are the trustees and servants of the people, and at all times, amenable to them.” The Department further urges that his representation is violative of the Code of Professional Responsibility (Code Ann. Title 9, Appen.)

Hill asserts that the legal representation by legislators of private clients against the State is a practice sanctioned by two centuries’ usage; that no other jurisdiction in the Republic has created by court rule any such disqualification; and that nothing suggested by the Department is contrary to the Code of Professional Responsibility.

As to Hill’s last contention, we agree. There is no dual representation in these circumstances, for the plain reason that a member of the General Assembly represents not the government of our State, nor any of its branches, departments, or agencies, but the electorate which is his constituency. With regard to his first two contentions, we disagree. The fact that a practice has endured for centuries by no means establishes its propriety, as all of history abounds in ancient evils. Nor is the want of authorities within our sister states persuasive, as we see it our responsibility to apply the Constitution of Georgia to the facts before us, whether or not that be consistent with the holdings of other states.

The issue in this case is, then, the meaning of the constitutional provision declaring that “[p]ublic officers are the trustees and servants of the people, and at all times amenable to them.”¹

This language has been brought forward unchanged from its initial appearance in Art. I, Sec. I, Par. I of the Constitution of 1877, that paragraph reading as follows: “All government, of right, originates with the people, is founded upon their will only, and is instituted solely for the good of the whole. Public officers are the trustees and servants of the people, and at all times amenable to them.” Earlier Constitutions embraced that same concept in differing words. The preamble of the very first Charter, the Constitution of 1777, contains this language: “We, therefore, the representatives of the people, from whom all power originates, and for whose benefit all government is intended, by virtue of the power delegated to us, do ordain and declare,____” The Constitution of 1861, at Art. I, Par. 16, holds: “A faithful execution of the laws is essential to good order; and good order in society is essential to liberty.”

The object of our government and the function of public officers are set out with consistency from the earliest days of our history. It is important, therefore, in delineating the import of the word “trustees,” to examine the manner in which that term was used contemporaneously with its first appearance in the Constitution of 1877.

The Code of Georgia of 1863, § 2309, read as follows: “The trustee must not use the trust funds to his own profit. He is liable to account for all such profits made.” That section differs but slightly from our present law, Code Ann. § 108-429, as follows: “The trustee shall not use the trust funds to his own profit. He shall be liable to account for all such profits made.”

The case of Caruthers v. Corbin, 38 Ga. 75 (1868), dealt with the responsibility of a fiduciary who, under the disjointed economy of the times, settled an obligation of an estate with Confederate Treasury Notes, profiting by supplying his own Confederate currency, which was worth but five cents on the dollar. Our court condemned that transaction, and laid down this plain and simple proscription — “He can not use his trust to promote his own personal interest.” Id. at p. 91. In City of Macon v. Huff, 60 Ga. 221 (1878), this Court dealt with a mayor who had contracted with his city to do certain things. Condemning alike that transaction, we held: “Therefore, in the mayor’s court of the city of Macon, Mr. Huff could not sit in a cause between himself and the humblest citizen of the city, involving the slightest breach of propriety or the smallest amount of money. Yet the effect of these contracts is to make him every day the judge in his own case. He has contracted for money to do certain work for the city, and as mayor of the city and its chief executive officer, it is his official duty to see that this work is well done. . . . His administrative and executive duties as mayor require him to overlook and judge of the extent and manner in which, as contractor, he discharges these obligations. Can he do it disinterestedly? Possibly he may; but the law regarding our fallen nature as all weak, and profiting by the prayer which the Son of God prescribed for all men, forbids that such temptation be laid in the path of any man, however exalted his office or pure his character____It matters not how fair the contract may be; public policy will not uphold it. This principle is iterated and reiterated everywhere in the books____So the very first section of the first article of the constitution of 1877 declares that public officers are trustees and servants of the people [omitting citation]. So that the current of Georgia policy, both in legislative and judicial channels, runs steadily in one direction and to one point, that no man who is agent or trustee for another, whether a private or public agent or trustee, shall have the opportunity or be led into the temptation to make profit out of the business of others entrusted to his care, by bargaining with himself, directly or indirectly, in respect to that business.” Id. at pp. 225, 226, 228.

Perhaps the earliest treatment of this subject is Harrison v. McHenry, 9 Ga. 164 (1850), relating to the propriety of a sheriff purchasing on his own account property sold at public outcry. Justice Nisbet wrote: “The whole subject is discussed by Chancellor Kent, in Davore vs. Fanning et al., in an opinion which is unsurpassed for its learning and ability, and in which it is settled that it makes no difference, in the application of the rule, that the sale was at public auction and bona fide, and for a fair price____The Sheriff is a trustee for the defendant in execution, by virtue of his office____All of which [powers] he holds in character of trustee for the owner; and being trustee, the obligations and disabilities of a trustee devolve upon him. ... If, then, the Sheriff, who is the agent of the defendant, were permitted to purchase at his own sale, his duty to his principal and his own interest would stand in direct opposition. Either he must violate the duty which he owes to his principal, or exercise a virtue rare amongst men — that is, sacrifice his own interest to that of another. To avoid this collision of interest, and to prevent a temptation to infidelity in his trust, the law imposes upon him a positive prohibition. It is well settled, that an agent employed to sell, cannot himself become the purchaser; and an agent employed to buy, cannot himself become the seller.... The State has a right to require skill, diligence and fidelity in her agents. The paramount good of the whole people requires that she should exact all these things— It is her duty so to regulate the execution of the laws, as to prevent injustice to the citizen, and to remove temptations from those who are chosen to execute them. The Sheriff accepts office — it is not forced upon him. He cannot, therefore, complain of the disabilities which are incident to it.” Id. at pp. 166, 167.

A member of the General Assembly is, of course, a “public officer” within the meaning of the Constitution. “Certainly, where an individual has been appointed or elected, in a manner prescribed by law, has a designation or title given him by law, and exercises functions concerning the public, assigned to him by law, he must be regarded as a public officer.” Bradford v. Justices of Inferior Court, 33 Ga. 332 (2) (1862). See also Polk v. James, 68 Ga. 128, 131 (1881): “An office is a public station or employment conferred by the appointment of the government. And any man is a public officer who is appointed by government, and has any duty to perform concerning the public; nor is he any the less a public officer because his authority or duty is confined to narrow limits.”

We have set out these venerable authorities as illuminative of the state of our law at the time of the initial adoption of the constitutional provision here in question. We must now resolve whether or not the characterization of public officers as “the trustees and servants of the people, and at all times amenable to them” is a substantive declaration of duty or, to the contrary, nothing more than the rhetoric of a bygone day.

That provision has remained unchanged for over a century, and we shall take it at its word. When our Constitution declares that “[p]ublic officers are the trustees and servants of the people,” we interpret that declaration to mean that public officers are the trustees and servants of the people.

All public officers, within whatever branch and at whatever level of our government, and whatever be their private vocations, are trustees of the people, and do accordingly labor under every disability and prohibition imposed by law upon trustees relative to the making of personal financial gain from the discharge of their trusts.

May one trustee of the people, as attorney and for his own financial gain, initiate or defend a lawsuit on behalf of another which seeks to defeat the official public actions of another trustee of the people?

May one trustee of the people, as attorney and for his own financial gain, negotiate on behalf of another for a favorable official dispensation at the hands of another trustee of the people?

Specifically concerning legislators, may one trustee of the people — in whose office are vested the powers of enhancement, diminution, and destruction of the office of another trustee of the people — as attorney and for his own financial gain act in a manner to hinder or frustrate the discharge by such other trustee of the duties of their common trust?

No.

We repeat today what we said 132 years ago in Harrison, supra: “Either he must violate the duty which he owes to his principal, or exercise a virtue rare amongst men — that is, sacrifice his own interest to that of another. To avoid this collision of interest, and to prevent a temptation to infidelity in his trust, the law imposes upon him a positive prohibition.”

We repeat today what we said 114 years ago in Caruthers, supra, at p. 91: “He can not use his trust to promote his own personal interest.”

We repeat today what we said 112 years ago in City of Macon, supra, at p. 226: “It matters not how fair the contract may be; public policy will not uphold it. This principle is iterated and reiterated everywhere in the books.”

Applied to the case before us, the Constitution prohibits a legislator from representing a client, for his own financial gain, in any civil transaction or matter wherein the State of Georgia shall be an opposing party.

Nor are the proscriptions of the law confined to legislators who are lawyers. They extend to every public officer.

It will be seen from the age of our authorities that we unveil no new precept here. To the contrary. What we have done is but to remove from our Constitution the blemished wrappings of ancient usage.

Decided May 19, 1982 Rehearing denied June 22, 1982. Michael J. Bowers, Attorney General, Vivian Davidson Egan, Assistant Attorney General, for appellant. Hill, Jones & Associates, Bobby L. Hill, Sutherland, Asbill & Brennan, Michael J. Egan, Jr., Timothy W. Floyd, for appel-lees.

Judgment reversed.

All the Justices concur, except Jordan, C. J., Clarke and Smith, JJ., who dissent.

1 For later provisions which impose certain restrictions upon specified public officers, see Code Ann. § 26-2305 (providing, in part, that it shall be a felony for any officer or employee of the State to ask or receive anything of value to which he is not entitled in return for an agreement to influence or attempt to influence official action by any other officer or employee of the State) and § 26-2306 (providing, in part, that it shall be a felony for any officer or employee of the State who, for himself or on behalf of any business entity, sells any personal property to the State). See, in general, Code Ann. Ch. 26-23. Concerning limitations upon full-time appointive State officials and employees, see the Trading with the State Act, Ga. L. 1956, pp. 60, et seq., as amended (Code Ann. §§ 89-913 through 89-918). See also Art. III, Sec. V, Par. IV, 1976 Ga. Const. (Code Ann. § 2-1104), prescribing the oath required to be taken by each member of the General Assembly which includes the affirmation “... I will so conduct myself as will, in my judgment, be most conducive to the interests and prosperity of this State.” Concerning limitations upon judges, see Georgia Code of Judicial Conduct, 231 Ga. A-1 (1974).