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iwwi mm 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 A Happy Home To have a happy home you must have children, as they are great happy-home makers. If a weak woman, you can be made strong enough to bear healthy children, with little pain or discomfort to yourself, by taking GARDUI WINE OF Woman’s Relief It will ease away all your pain, reduce inflam mation, cure leucorrhea (whites), falli ng womb, ovar ian trouble, disordered menses, backache, headache, etc., and make childbirth natural and easy. Try it. At every drug store in $1.00 bottles. WRITE US A LETTER freely and frankly, telling us all your troubles. Wa will send free advice (in plain sealed envelope). Address: La dles’ Advisory Dept., The Chattanooga Medicine Co., Chattanooga, Tenn. “DUE TO CARDUI and nothing else, is my baby girl, now two weeks old,” writes Mrs. J. P. West, of Webster City, Iowa. “She Is a line, healthy babe and we are both doing nicely.” 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.' AN ATTORNEY. / Phil Harris, Leading Opthalmic Optician. Consult us for defective eye sight. Eyes Examined FREE. Perfect Fit Guaranteed. POPULAR SPECIALTIES Ladies’ Handsome Hair Combs. Our Combs appeal to the most critical. They range in designs from simple elegance to the most artistic ornamentation. Every article engraved free. Phil Harris, LEADING JEWELER. ’Phono 107. fdTM&il orders will receive our very prompt attention. m FOR AND AGAINST LIQUOR There may be much to be said, but no one who Is for liquor w’ll be against the line of liquors dis pensed at our POPULAR BaR. ,#•#*» ishfsa 1 The whiskey we sell is a de cidedly smooth article. Made right in the first place and aged, not by artificial means, but by time's mellowing hand. It's the same way all through. Whiskey, Wines or Beer at our bar is A-l. Oavis.ExohangO Bank Building THE OFFICE Broad Street. 'lbany Insurance AOENCV. tdueowwor »o 00, L. Wight to Uu,. insurance FIRE LIGHTNING AND WIHD STORMS. r.lsokoasi I ft and 111. 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 Sharon Baptist Church, BeJalr, Ga., says of Electric Bitters: “It's a God send to mankind. It cured me of lame back, stiff joints, and complete nhyslcal collapse. I was bo weak It took me half nn hour to walk a mile. Two bottles of Electric Bitters have made mo so strong I have Just walked three miles In 50 minutes and feel like walking three more. It's made a new man of me." Greatest remedy for weakness and nil Stomach. Liver and Kidney complaints. Sold under guar antee at Albany Drug Co. Price 60c. It will pay you to keep Chamber lain’s Colic,. Cholera and Diarrhoea Remedy In your home. It only costs n quarter. Sold by HUsman-Sale Drug Co Big Dove Shoot Next Tuesday. Notice Is hereby given that the big dove shoot will occur on the Farkae place next Tuesday morning. Parties desiring to participate will Bee me and secure tickets. The charge, to cover 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 mary. L-. G©IG©R, We oordially invite you to a look at our stooic you will that HIGH QUALITY h. been lookea after as cart as LOW PRICES. tale efuily Just a Few Ftice: Ladies’ Pure Sheer Linen Hemstitched Initial Handkerchiefs at • |Qc Dainty Bmbrolderea nandkerchlel: linen and lawn, fine and ready for lifts, worth 3» per cent, more, at from • • 20c to 85 c Bl| lot White and Figured Hetn- stltched Handkerchiefs, Ladles' •ad deals’, at • • 85 Boxes Children Initial Hsndker- chiefs, 3 In a box, at a box, • Men's White Silk Handkerchiefs, high grade, large sixes, well'worth 38c per cent more. Holiday prices, (rom . ... 2§c to $| 00 $1.25 Ladles' Kid Qloves, fine goat- Ity; tble week at • ■ • 75c Hand-Knitted Woolen Underskirts, fancy designs, delicate color* from .... gjjc to $| *25 One lot ol White Marseilles Spreads, from • • > > 75c to $3.00 WJust received' an assortment, of LADIES* BELTS, stylish and up-to-date. ffvTUnderweur and Hosiery for the whole family at saving prices. L>. GEIGER, 71 Broad Street. FOR TAX- RECEIVER. Albany, Ga./Feb. 6, 1906. I heraby announce myself a candi date for the office of Tax Receiver of Dougherty County subject to the com- . lng primary, and solicit the support of the voters of Dougherty County. B. F. MANNING RENTING, COLLECTING ANC ESTATE AGENT FOB 8 ALB, ihle plantations an terra, to nit' Twodotilrabl ence in virgin w< Lots 10 end 18 IS7& ,.lx may. 800 seree opt m toad roodtond; no waste land. on Booth street, eheap. . A ytrj deeirable X A acre lot in Arcadia, op poalte Oscar * eundorfer. Desirable home on icuh __ Washington atreeH terms satisfactory. Deeirable cottoge on Residence street. Also % sore adjoining, ^ftoveralrolldlng lots on State street: % < and loan mono* to bolld booses Three desirable residences on State street; % cash, balance on long tlmo I have not space and time to tell $ have, bnt I can sell you moat anytL want In real estate I haven’t time to c _ advertisements bnt I «m telling. Give me i “ ell toy \ all 1 a’l and I will sell to you. Will be glad to show ton and figure with i i what J havo. I do a general collecting 6 In*** and solicit vnnr na* ronage. Office In the oourt honee. (HnKB&tti a S. W. GUNNISON. 1 New Partnership Announcement Is hereby made that Ed R. Jones and Clayton Jones havi formed n partnership for the prectie of law and to engage In the real < tate business, with offices at 7, 8 i 9 Davis-Exchange Bank Bulldil style of the firm being Ed. R. d ton Jones. Their aerrioan are: folly tendered the j