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THE ALBANY DAILY HERALD: THUR8DAY, FEBRUARY 8, 1906.
Bearing on the Combined Offices
Clerk of tlie Superior Court and
County Treasurer.
of
OF
AS
'AN ATTORNEY" GIVES THE VOTERS
DOUGHERY COUNTY INFORMATION
TO THE LEGAL STATUS INVOLVED IN THE
PRESENT RACE FOR COUNTY TREASURER.
THE DECISION IN FULL.
Albany. Gil., Feb. 7, 1900.
To the Editor of The Herald, City.
Dear Sir: In connection with the
doming contest over the election of a
proper aspirant to (ill the position of
Treasurer of Dougherty county, there
has arisen a considerable amount of
apparent complication regarding the
constitutionality of the consolidation
of the offices of Clerk and Treasurer,
and thereby constituting the Clerk the
Ex-Ofiicio Treasurer of the county.
Would consolidation of the two offices
result In the abolition of the one?
Beyond any question of doubt it would.
This is the decision made by the Su
preme Court: it is the conclusion
reached by that august body; the
highest tribunal in the State. To lay
down the absurd proposition that a
decision made by the Supreme Court
of the State touching the constitu
tional question carried up from one
county is not binding in every other
county, the State over, not only tends
to show a lack of the knowledge gov
erning the fundamental principles of
the execution of the laws, but is abso
lutely ridiculous on its face, and would
lead one to believe that “though this
be madness, yet, there is method in
it.”
For the information of the voting
public, probably it would be advisable
to elucidate in a manner impartial, as
far as practicable, the legal status of
the question Involved, without making
any personal allusions or reference to
the merits of the respective candi
dates, except to say that the writer is
sufficiently acquainted with the quali
ties of all four of the applicants to
pronounce them gentlemen of ability,
affablo and courteous, thoroughly re
liable and fully competent to hold the
position to which they aspire, and that
In case of the success of either of
them. It will be attributable to a mat
ter of personal preference on the part
of the people, and that on the other
hand, in case of the defeated. It will
not he due to the lack of public confi
dence.
As nn attorney,- the question has
been constantly propounded to me: Is
It unconstitutional to consolidate the
offices of Clerk and Treasurer of
Dougherty county? An analogus case
having arisen in the county of Cobh,
was passed upon by the Supreme
Court. In the 121st Georgia, page 751,
In the case of Morris versus Glover.
The decision having been rendered by
the very able and eminent jurist, Mr.
Evans, it is proper to employ his own
forceful language in answering this
question. It Is also proper to state,
Just here, that In the Acts of 1876,
which contains the local Act relating
to Cobb county, is also contained the
local ant relating to Dougherty county.
"1. The locnl act approved Febru
ary 29, 1870, (Acts of 1876, p. 322),
providing for the consolidation of the
offide of County Treasurer of Cobb
countv with the office of Clerk of the
Superior Court of that county, mak
ing the Clerk Ex-Officio Treasurer and
fixing his fees, is unconstitutional and
wholly Inoperative, In that, under the
Constitution of 1868, the General As
sembly was without power to express
ly abolish the office of County Treas
urer, or to accomplish the same re
sult by indirection, by depriving the
Treasurer of the emoluments of that
office and transferring the duties
thereof to the Clerk of the Superior
Court. Decision in Massenburg vs.
Commissioners, 96 Ga. 614, approved
and followed: dictum in Hall v- Burks,
Id. 622, disapproved.
“This was a mandamus proceeding
instituted by J. Gid. Morris, who
claims to have been duly elected
Treasurer of the county of Cobb at
an election for county officers held lu
that county on October 5. 1904. The
purpose of the proceeding was to com
pel the superintendents of that elec
tion, who were named in the plain
tiff's petition as defendants, to consol
idate the votes cast in his favor as
County Treasurer, for which offleo he
was the only candidate, and to certify
the result and make proper return
thereof. The defendants filed a de
murrer to the petition, In which they
set forth their contention that "Thero
Is no such office as Treasurer of Cobb
county, separate, apart, and distinct
from the offleo of the Clerk of the
Superior Court of said county,” the
office of Treasurer having been con
solidated with that of Clerk of the Su
perior Court by nn act of the Legis
lature approved February 29, 1876,
"whereby all the duties required to
be performed by the Treasurer of said
county were devolved upon the Clerk
of the Superior Court of said county,
and whereby said Clerk became ex-
offlcio Treasurer of the county.” On
the hearing of the demurrer the court
sustained this contention of the de
fendants, holding that the local act
rolled on by them was not, for any of
the reasons urged by the plaintiff, in
operative and of no efTect. To the
Judgment dismissing his petition on
demurrer the plaintiff duly excepted.
The main attack made on this local
net Is that it is unconstitutional, in
that the Legislature sought by indi
rection to abolish one of the county
offices recognized by the Constitution
of 1868, by devolving the duties of the
office of Treasurer upon the Clerk of
the. Superior Court, and styling him
ex-offlelo Treasurer, which It was not
within the power of the General As
sembly to do."
"EVANS, J. (After stating the
facts). 1. The controlling question
Ms the constitutionality of the act ap
proved February 29, 1876, (Acts of
1876, p. 322), consolidating the office
of County Treasurer of the county of
Cobb with the office of Clerk of the Su
perior Court of that county, making
the Clerk ex-offlelo Treasurer and fix
ing his fees. The act is alleged to
he violative of article 9. section 1, of
the Constitution of 1868, In force at
the time of Its passage. This article
and section of the Constitution pro
vide that: 'The county officers rec
ognized as existing by the laws of this
State, and not abolished by this Con
stitution, shall, where not otherwise
provided for in tills Constitution, be
elected by the qualified voters of their
respective counties or districts, and
shall hold their offices for two years.
They shall be removable, op convic
tion, for malpractice in office, or on
the address of two-thirds of the Sen
ate.’ This clause of the Constitution
was construed In Massenburg v- Com
missioners of Bibb county, 96 Ga. 614,
and it was there ruled that: 'The of
fice of County Treasurer having been,
under the law existing previous to tile
adoption of the Constitution of 1868,
recognized as a county office, and that
office not having been abolished, but,
on the contrary, recognized by that
Constitution, it became and was there
by established as a constitutional of
fice, and could not thereafter, while
that Constitution was of force, bo ab
olished by an act of the Legislature.'
The contention of the plaintiff in er
ror Is that the local act (Acts of 1876,
322), consolidating the office of County
Treasurer with the office of Clerk of
the Superior Court is, in effect, the
abolition of the office of County Treas
urer, and Is therefore void.
"It was expressly held in Masscn-
burg v. Commissioners, supra, that It
is Incompetent for the Legislature to
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directly abolish a constitutional office.
Can the Legislature, by indirection,
accomplish what It is restrained from
doing by the organic law of the land?
Among the incidents of public office
are tho discharge of its duties and the
enjoyment of its emoluments by the
individual entitled to the office. At
the time of the ratification of the Con
stitution, the duties of the office of
County Treasurer were discharged by
an Individual elected by the peoplo
for a definite term, invested by law
with all the rights and duties apper
taining to this office. Ho was styled
tho County Treasurer, and wns includ
ed among the county officers embraced
in the section of the Constitution
which provided for the future election
and proscribed tho tenure of service
of certain county officials whose of
fices had heretofore been lawfully
created. Tho County Treasurer held
a separate and distinct office, expressly
recognized by the Constitution: lie wns
an officer declared by that instnnnent
to ho a county official who wns to bo
elected by tho peonle for a term of two
years. If tho duties and emoluments
of Ills offleo he transferred to another
officer, then there would exist tho an
omalous condition of an offleor recog
nized by the Constitution without
duties or emoluments. Thu duties and
emoluments are of the substance of
tho office: its name but tho sem
blance. If the Legislature may consol
idate the office of Treasurer with that
of the Clerk of the Court, why should
not tho authority be extended to con
solidating tile other county offices, so
that the Clerk might, ex-officio, dis
charge the duties of all county offi
cers? Thoro is no more reason why
the Clerk, with legislative sanction,
should he ex-officio Treasurer, than
there is that he should also bo, at the
will of the General Assembly, ex-offlelo
Tax Receiver, Tax Collector and Sher
iff. It cannot be seriously contended
that the framers of the Constitution,
by express recognition of separate
nnd distinct offices, with separate and
distinct functions, contemplated that
the Legislature might devolve the du
ties of two or more offices upon one
functionary. In those governments
where the law-making power Is not
fettered by a written constitution
limiting its authority, offleos may be
created, consolidated, or abolished, at
legislative will. Likewise, an offico
created by statute, but not defined In
or recognized by the Constitution, may
be abrogated by Btatute. But where
an office Is created or guarded by ex
press Constitutional provision, Its
scope can not be enlarged cr lessened
by statute, ilor can the office bo filled
In any manner other than that pre
scribed by the Constitution. People
v. Bollam, 64 N. E. 1032. When the
Legislature assumed to transfer to
the Clerk of the Superior Court alf the
duties nnd emoluments which belonged
to the office of Treasurer, it practically
abolished the office of Treasurer.
There is no recognition in the statute
of such an official as a County Treas
urer: the functions of Ills offleo are to
be discharged by the Clerk, vlrtuto
officii. It has been hold that t(ie tak
ing nway of the salary amounts to the
abolition of the office, Reid v. Smoul-
ter, 18 Atl. 445. If the withdrawal of
the emoluments will accomplish this
result, a fortiori the transfer of both
compensation nnd duties to another
official would have the snme offect.
See Tliroop on Pub. Off. Par. 20.
The Clerk of the Court, by this
locnl act, is Treasurer of the cunty
of Cobb, or the offleo of Treasurer Is
extinct. If the Clerk Is the Treasurer,
and should be guilty of malpractice
in the administration of the functions
pertaining to the office of Treasurer,
could he be removed from tho office
of Clerk of the Superior Court for
such malpractice? Would it not be a
good reply for the Clerk to say, 'I
have faithfully discharged my duties
as Clerk, and my malfeasance as
Treasurer can not forfeit my office as
clerk?' The act declnres that the
Clerk is ex-offlelo Treasurer. If this
means that his office is that of 'clerk'
and that his duties comprehend both
tile duties of Clerk and thoso of coun
ty Treasurer, then he Is not the Treas
urer, and no such office as county
Treasurer longer exiBts. If he is both
Clerk and Treasurer, a malfeasance In
the office of Treasurer would not jus
tify his expulsion from the office of
Clerk. Yet, the Constitution declares
that a county officer is removable, 'on
conviction, for malpractice in office.'
Therefore, should the Clerk embezzle
funds received as county Treasurer,
he might escape the constitutional
penalty of removal from office.
The Constitution of 1868 bears In*
tcrnal evidence of the construction
that each constitutional office should
be filled by a separate individual.
Article 3, sec. 1, par. 4, provides that
no person holding a military commiss
ion or other appointment of office hav
ing any employment emolument or
compensation annexd thereto, under
this State or the United States, or
either of them, except Justices of the
peace and officers of the militia, shall
have a seat in either house of the Gen
eral Assembly. The office of justice
of tho peace Is a constitutional office,
and to entitle the holder of that office
to a seat in the General Assembly the
framers of the Constitution deemed
it necessary to make an express ex
ception. The case of Hail v. Burks,
96 Ga., 622, Is apparently antagonistic
to the conclusion we have reached in
this case. In that case it was said
that it 'waB, under the Constitution of
1868, competent and constitutional for
tho General Assembly to pass an act
“consolidating" the offices of Clerk of
the Superior Court and Treasurer of
a given county, to the extent of de
volving the duties of the Treasurer
upon the Clerk and making tho latter
ex-offlelo Treasurer.' This dictum of
the court was clearly obiter, as will
be seen from an examination of the
report of the case, as well as from tho
transcript of the record on file in the
offico of the Clerk of this court. The
assignment of error was that the trial
judge erred in not sustaining the con
tention of the plnlntlff that the act of
February 28, 1876 (Acts of 1876, p.
395), ‘abolishing the office of County
Treasurer and vesting tho Clerk of
the Superior Court with the duties of
Treasurer, was and is unconstitutional
and illegal, because both the Consti
tution of 1868 and 1877 provide for
the uniformity of the Inws and offices
of the State, and this local act de
stroys that uniformity by abolishing
the offleo of Trousurer In Dougherty
County nnd not In the whole State;
and because at that time of the pass
age of said locnl act and now, the
general law of tho State provided that
no other officer should be County
Treasurer, nnd this local act is in va
riance with Bnld general law and is'
therefore unconstitutional and illegal.
Sec. 6027 and 6228 Constitution of
1877, and Codo 1882, Sec. 612 nnd 646;
Constitution 1868, Sec. 5018 and 5140;
nnd Code 1873, Sec. 542 and 646.' Tho
attack made on thlB local act was
that it wns violative of n constitu
tional provision requiring that all
laws affecting public office should
havo uniform operation throughout the
State, nnd that It wns special legisla
tion upon a subject-matter for which
provision had been made by an exist
ing general law. Such was tho mean
ing placed on the assignment of error
b.v this court at the time, ns will ap
pear from tho statement of tho case
in the official report: and tills Inter
pretation of the assignment of error
was correct. The local act was not
unconstitutional for the reasons as- 1
signed, because tho Constitution of
1S6S contained no Inhibition against I
a special legislation in given cases, j
as does the Constitution now of force.
Civil Code, par. 5732. The court very -
properly held that-the local law was
not unconstitutional because of tho
objections then urged against It, hut
the unguarded statement that It was,
under the Constitution of 1868. com
petent for tho Goneral Assembly to
pass an act of tills kind, consolidating
two county offices, was altogethor too
broad. ‘This court has no authority
to decide any question on any writ of
error, unless thoro are in the hill of
exceptions "plainly nnd specifically
set forth the errors alleged to have
been committed,” and n “special as
signment of error" raising the ques
tion.’ Kelly v. Strouso, 116 Gn„ 874
(9). The ruling announced in Hall v.
Burks can not be extended beyond the
adjudication of the questions made by
the above quoted assignment of error,
nnd the proposition stated In the first
hendnote to that case is, so far as It
concerns the question now presented
for decision, mere obiter dictum and
not a binding adjudication thereof.
2. The plulntlff’s netition wns de
murred to on tho further ground that
if he had sustained any wrong, ho'hhd
'a complete nnd adequate remedv by
n-proceeding to contest said election.'
The allegations of the petition disclose
that the plaintiff was the only candi
date for the office of Treasurer, and
that he received 193 votes. While
some of the votOB cast for the candi
date who was running for tho office
of Clerk read 'for Clerk nnd County
Treasurer.' no ballots were cast for
him ‘as Treasurer,’ nnd he wns not a
candidate Mr the office of Treasurer.
Clearly, therefore, a contest was out
of tho question. ' The plnlntlff sought
by mandamus merely to require the
mnnntrors of the oleotioll to properly
consolidate the returns and declare
the result. TIiIb was the remedy to
he pursued. Tanner v. Deen, 108 Ga„
95. |
“3. The defendants also mndo the
olnt that, as disclosed by tho peti
tion. the managers of the election had
et. consolidated the returns, and ad
journed sine die, long before the
bringing of tho present proceeding,
and could not ho reassembled at the
nstnnce or petitioner for the purpose
of consolidating the returns in accord
ance with nnv order which tho court
might pass. Though the power of a
court to compel, by mandamus, n
board of cancassors to reconvene and
recanvass tho votes In accordance
with Its directions hns been called In
to question, the weight of authority
Is that this may be done. See 10 Am.
A Eng. Enc. L. (2d ed.) S08, and ciL
This court, in Tanner v. Deen, supra,
held that the. remedy of mandnmus
could not be defeated nlmnly because
the returning board had dissolved be
fore properly performing Its func
tions."
Allow me to close this article In the
words of the fnmous Chief Justice
Simmons, the highest magistrate of
the highest tribunal In the State,
when he referred to the same decision
of Morris v. Glover In the 122nd Ga.:
While Morris may not have been
the mnn that a majority of the voters
of Cobb county would have selected
for the office, yet Inasmuch as he re
ceived all the votes for the office of
Treasurer that were cast, the law de
clares him entitled to the office, nnd
we think that tho people advene to
him should submit to the law, how
ever much it cuts ngalnst their wishes,
nnd we also think that these election
superintendents, after lenrning what
the law Is, should cheerfully obey the
orders of the courts, consolidate the
vote for Morris, and declare the re
sult according to law. We sincerely
trust that this will be the end of the
controversy, however distasteful the
result may be to some of the parties.'
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F. O. TICKNOR Mow
AN NOUNCEHENTS.
FOR 8HERIFF.
I hereby announce my candidacy for
re-election to the office of Sheriff of
Dougherty County, subject to tbe
white Democratic primary, and re
spectfully ask the support of my
frlendB and the public generally.
F. G. EDWARDS.
FOR TREASURER.
I hereby announce myself as a can
didate for the office of Treasurer of
Dougherty County, subject to the ac
tion of the Democratic primary. I re
spectfully solicit tho support of my
friends anil fellow citizens.
H. A. TARVER,
FOR TREASURER.
A Healing Gospel.
The Rev. J. C. Warren, pastor of
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Big Dove Shoot Next Tuesday.
Notice Is hereby given that the big
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cost of teed, etc., will be $1 per gun.
J. II. DAVIS.
I hereby announce that I am a can
didate lor Treasurer of Dougherty
County, subject to the white Demo
crats primary called for March 22. I
respectfully ask the support of my
friends and acquaintances, and pledge
my best attention to the duties of the
office In tho event of my election.
PAUL H, JONES.
FOR COUNTY TREASURER.
I hereby announce my candidacy
for the office of Treasurer of Dough
erty County, subject to the action of
tho white pemocrattc prlmnry, March
22. I most earnestly solicit support
from my friends and the public gen
erally. P. B. TUCKER.
FOR CLERK SUPERIOR COURT.
We are authorized to announce the
cnndidacy of Mr. R. P. Hnll for re-
election to the office of Clerk of tbe
Superior Court of Dougherty County,
subject to the white Democratic pri
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FOR TAX- RECEIVER.
Albany, Ga./Feb. 6, 1906.
I heraby announce myself a candi
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Dougherty County subject to the com-
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of the voters of Dougherty County.
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