Daniel v. Citizens & Southern National Bank

185 S.E. 696, 182 Ga. 384, 1936 Ga. LEXIS 373

• Court: Supreme Court of Georgia
• Decided: May 9, 1936
• Docket: No. 11353
• Status: Published

Opinions

Graham, Judge.

It is practically conceded that if Daniel is a de jure officer — that is, if the Governor had authority to suspend Hamilton as Treasurer and appoint Daniel in his stead pending the suspension, the bank would be fully protected in the payment of the funds on deposit to Daniel as State Treasurer. But it is insisted that Daniel is not a de jure officer; that the Governor had no authority to suspend Hamilton and appoint Daniel, it being contended that section 40-1301 of the Code should be construed as a limitation on the power of the Governor to suspend as stated in section 40-206; that the two sections should be construed in pari materia and to mean that the Governor could suspend only after trial before the council; that if the Governor did have such authority, his order of suspension was tantamount to a removal, which was invalid because ordered without notice or trial to Hamilton, and because the order makes no findings of fact sufficient to show that any of the causes specified by the statute existed.

An examination of the constitution and provisions of the Code in reference to the suspension of the State Treasurer, as well as of the authorities construing the same, demonstrates that these objections to the authority of the Governor to suspend the State Treasurer and the validity of his appointment to fill the vacancy during the suspension are not tenable. The constitution of 1868 was silent as to the authority of the Governor to suspend the Treasurer, and the Governor was without statutory authority to suspend him. By an act of February 25, 1876 (Ga. L. 1876, p. 127), the legislature authorized the Governor to call a council, to be composed of the Attorney-General, Secretary of State, and Comptroller-General, in circumstances named, and upon a finding of a majority of the council to suspend the Treasurer, and, in the event of suspension, to appoint some fit and proper person to discharge the duties of the office during the period of the suspension. Such provision of this act is now in the Code of 1933, as follows: “40-1301. (222) Suspension of Treasurer; appointment of person to discharge duties.- — Upon representation made to the Governor by any person under oath, or where the Governor has received reliable information from any source, that the Treasurer is insane or manifestly insolvent, or that he has absconded or concealed himself, or is guilty of conduct which is to the hazard of the public treasury, he shall call a council to be composed of the Attorney-General, Secretary of State, and Comptroller-General, and if they, or a majority of them, after an examination into the truth of such representation, shall find the same to be true, the Governor shall suspend the Treasurer from office until the next session of the General Assembly and issue proclamation thereof, and he shall submit to said body his action in the premises and the reasons therefor. In the event of a suspension of the Treasurer, the Governor shall appoint some fit and proper person to discharge the- duties of said office during the period of such suspension, who shall take an oath and give bond and security upon like terms and in the same manner as provided for the Treasurer elected by the people.”

It was also provided in the act of 1876 that there should be a State Treasurer elected by a joint vote of both houses of the General Assembly, and that he should hold his office for four years. While the act of 1876 was in force as to the election and suspension of the State Treasurer, the constitution of 1877 was ratified. This constitution provided for election by the people of the State Treasurer; and further provided, in article 5, section 1, paragraph 18 (§ 2-2618), as follows: “The General Assembly shall have authority to provide by law for the suspension of either of said officers [State Treasurer or Comptroller-General] from the discharge of the duties of his office, 'and also for the appointment of a suitable person .to discharge the duties of the same.” By an act of September 30, 1879 (Ga. L. 1878-9, p. 30), the General Assembly, without repealing the act of 1876 in reference to suspension of the State Treasurer, put into effect this provision of the constitution, the caption of the act being as follows: “An act to carry into effect paragraph 18, section 1, article 5 of the constitution of 1877; to provide for the suspension of the Treasurer or Comptroller-General of the State, and also for the appointment of a suitable person to discharge the duties of the same.” Section 1 of the act, authorizing the General Assembly to suspend the State Treasurer or Comptroller-General, is incorporated in the Code of 1933 as follows: “47-701. (347) Suspension of Comptroller-General or State Treasurer. — The General Assembly may suspend, from the functions and duties of office either the State Treasurer or the Comptroller-General (by joint resolution duly adopted after being read one time in each House on different days, and by a two-thirds vote of members voting on the same), whenever the interests of the State, or the proper administration of the law demand such suspension.” Section 2 of the act is incorporated as follows: “40-206 (160) Suspension of State Treasurer or Comptroller. — Whenever the Governor shall have trustworthy information that the State Treasurer or Comptroller-General is insane, or has absconded, or grossly neglects his duties, or is guilty of conduct plainly violative of his duties, or demeans himself in office to the hazard of the public funds or credit of the State, the Governor shall suspend said Treasurer or Comptroller-General, as the case may be, and report his reasons for such suspension to the General Assembly. Said suspension shall continue until the General Assembly shall otherwise direct.” Section 3 of the act provides for appointment by the Governor of some suitable person to discharge the duties of the office, this provision being codified as follows: “40-207 (161) Officers pro tern, in cases of such suspension, appointment. — Whenever the State Treasurer or Comptroller-General shall be suspended, the Governor shall appoint some suitable person to discharge the duties of the office until the suspended official shall be restored by law or his successor elected and qualified. The person so appointed shall take the oath and give bond required by law of the regular incumbent.”

Sections 40-206, 40-1301, and 47-701 are within the constitutional provisions for the suspension of the State Treasurer, and provide a separate and distinct remedy for his suspension. The provision of the act of 1876 contained in section 40-1301 was not repealed by the constitution of 1877, or by the act of 1879, con-tamed in sections 40-206 and 47-701. Each, section must be dealt with as though it were contained in the same act of the legislature. The adoption of the Code of 1933 (Ga. L. 1933, p. 84) amounted to a re-enactment of each section as contemporary statutes of the State. Gramling v. Poole, 111 Ga. 93 (36 S. E. 430); Davis v. Davison, 160 Ga. 545 (128 S. E. 743); Central of Georgia Railway Co. v. State, 104 Ga. 831 (31 S. E. 531, 42 L. R. A. 518). They should be construed as if they were separate paragraphs of the same statute. Gillis v. Gillis, 96 Ga. 1 (23 S. E. 107, 30 L. R. A. 143, 51 Am. St. R. 121). It is the duty of the courts, where possible, to give an act such construction as will give full force and effect to all of its provisions. Code sections relating to the same subject-matter and codified at the same time should be construed, if possible, to harmonize with each other, and that construction should be adopted as will prevent a contradiction by one section of the other, and go that both will be operative. Gray v. McLendon, 134 Ga. 224 (67 S. E. 859); Bealle v. Southern Bank of Georgia, 57 Ga. 274; Thomasson v. Fannin, 54 Ga. 361. Giving such construction to these sections of the Code, it is clear that the law provides three methods, neither inconsistent with the other, by which the State Treasurer may be suspended, one by the General Assembly, one by the Governor on the finding of the council, and the other by the Governor on trustworthy information. Section 40-1301, providing for suspension on finding of the council, contemplates a finding after an examination into the truth of the charge, while section 40-206 does not contemplate any hearing on the charge. Section 40-206 contemplates that there might arise a situation where immediate suspension is necessary to protect the State. Should the Treasurer become insane, must the office suffer the hazard of being occupied by a lunatic, or cease to function until a lunacy trial, or until a guardian be appointed and a hearing had ? Suppose the Treasurer should abscond, what kind of notice could be given him; and when could a hearing be had ? If notice by publication, when, how and by whom would it be published ? In the meantime must the wheels of the State stop for the want of a Treasurer ? The Governor might have information that the funds or securities of the State were about to be misappropriated or unlawfully converted, and that to await the delay of a trial after notice of the charge would be too late to prevent the wrong. It is of no use to lock the stable door after the mule is stolen. It seems the legislature considered the provisions of section 40-1301, providing for a suspension of the Treasurer, inadequate to meet all contingencies. Evidently the legislature by the enactment of section 40-206, providing for suspension by the Governor, intended to safeguard against the emergency. The law places the responsibility on the Governor. It is his duty to act when he has what appears to him trustworthy information that the State Treasurer is insane, or has absconded, or grossly neglects his duty, or is guilty of conduct plainly violative of his duties, or demeans himself in office to the hazard of the public funds or credit of the State. The Governor may act, according to the exigencies of the case, under either section 40-206 or 40-1301. In either case, when the council finds the charges are true, or when the Governor moves under section 40-206, he must suspend the Treasurer and refer his action to the next legislature. It is a suspension, and not a removal. While in a way it may seem to be equivalent to removal, because of the fact that the term may expire pending the suspension, yet in law it is not a removal, but by the very terms of the law is a suspension. If the legislature otherwise directs, the suspended officer will be restored to office and entitled to compensation as though he had not been suspended. It is argued that the decisions in Coleman v. Glenn, 103 Ga. 458 (30 S. E. 297, 68 Am. St. R. 108), Ledbetter v. Reese, 148 Ga. 633 (97 S. E. 669), and Talmadge v. Cordell, 167 Ga. 594 (146 S. E. 467), are authority that the Treasurer may not be lawfully suspended without notice and hearing. Those decisions were dealing, not with suspension, but removal. The writer of this opinion was the trial judge in the Cordell case. In that case Talmadge, now Governor, then Commissioner of Agriculture, removed Cordell, a fertilizer inspector, from office without notice or hearing. Such procedure was not, in the opinion of the writer, in accord with the interpretation of the law by this court in such cases; so we found against the Commissioner. The ruling was affirmed by this court. In the Cordell case we did not hesitate to follow the law as we understood it. Here we also track the law.

A suspension from office does not destroy but merely suspends the acquired right to the office. 46 C. J. 983, § 144. A suspension from office and a removal from office convey very different ideas. In the case of suspension it is contemplated that the suspended officer may be restored to his office and hold the same by virtue of his original title, while in case of removal the title of the removed officer is permanently lost to him. State v. Heinmiller, 38 Ohio St. 101. Neither the constitution nor the act putting its provision in effect provides for a hearing. It is not necessary, however, for us to consider whether one may be removed from office without a hearing. The section under which the Governor acted provides merely for a suspension, and such may be had without a hearing. Gray v. McLendon, supra. It was not intended by the framers of the constitution or the legislature that a hearing should be had. There is no reason why the courts should write such meaning into the act. To do so would not be in accord with its letter and purpose. It might in some cases defeat its operation and render the statute futile. "The suspension of an officer pending his trial for misconduct, so far as to tie his hands for the time being, seems to be universally accepted as a fair, salutary, and often necessary incident to the situation. His retention at such a time of all the advantages and opportunities afforded.by official position may enable and encourage him, not only to persist in the rebellious practices complained of, but also to seriously embarrass his triors in their approaches to the ends of justice. These considerations have a special force as applied to officers entrusted with public monies. The running of the governmental machinery is so intimately connected with, and dependent upon, the public treasury that, unless summary power and a speedy remedy be lodged somewhere, great danger to the public may ensue. The safety of the State, which is the highest law, imperatively requires the suspension, pending his trial, of a public officer — especially a custodian of public funds— charged with malfeasance or nonfeasance in office. Suspension does not remove the officer, but merely prevents him, for the time being, from performing the functions of his office, and, from the very necessities of the case, must precede a trial or hearing. Such temporary suspension without previous hearing is fully in accordance with the analogies of the law.” State v. Police Commissioners, 16 Mo. App. 48; Griner v. Thomas, 101 Tex. 36 (104 S. W. 1058). Suspension of public officers is a matter separate and apart from the removal of public officers. Cases relating to the exercise of the power of removal are without application to a statute relating to the suspension of public officers. 22 R. C. L. 564, § 270. The validity of the order of suspension does not depend on a statement of fact therein sufficient to show that the cause of the suspension existed. All officers are presumed to do their duty. Ledbetter v. Reese, 147 Ga. 710 (95 S. E. 209). The statute providing for the suspension does not require any statement of fact from the Governor upon which he acts. It provides for him to act on trustworthy information, information that is satisfactory to him. It may be that the legislature did not think it wise to require the Governor to disclose Ms information or its source. Often information is more readily given when secret. Judgments or findings of tribunals do not ordinarily require, to give them validity, a statement of the evidence upon which they are found. Be this as it may, there is no provision of the statute or rule in this State compelling the order of suspension to disclose the evidence upon which it is made.

It is not our office to inquire into the wisdom of the legislature in clothing the Governor with the responsibility, under certain circumstances, to suspend the State Treasurer. There is ample argument to show that the power should be lodged somewhere. Here it is in the Governor. The only limitation on his discretion is that he must act on trustworthy information and report his action to the General Assembly. This is not the first case where a Governor of the State suspended an officer elected by the people. A former Governor, Hoke Smith, suspended a member of the Railroad Commission. In dealing with the case growing out of such suspension this court held, in Gray v. McLendon, supra, that the suspension might be had, and was legal without notice or hearing. Under section 40-206, the Governor decides whether or not the cause for suspension exists. It is no answer to say that the power is subject to abuse. All discretionary power is subject to abuse; but in the very nature of things, in order to secure, insure, and preserve the functions of government, it must in many cases be lodged in some officer of the State. The legislature has chosen, in this instance, to confer this power upon the Governor, with the requirement that he report his action to the legislature. The exercise of this power under the sanction of his official duty and obligation to the State is not subject to review or control by the courts. The remedy for inquiry and review to correct any error that may grow out of its exercise is reserved unto and conferred upon the legislature. Gray v. McLendon, supra; Felton v. Huiet, 178 Ga. 311 (173 S. E. 660); State v. Western & Atlantic R. Co., 136 Ga. 619 (71 S. E. 1055); Griner v. Thomas, supra; State ex rel. Short v. Brownlee, 96 Okla. 250 (222 Pac. 232); Botany Worsted Mills v. U. S., 278 U. S. 282 (49 Sup. Ct. 129, 73 L. ed. 124); 25 R. C. L. 982, § 229; 12 R. C. L. 1008, 1010; 46 C. J. 983.

A de jure officer is one who occupies by right a de jure office. A de jure office is one lawfully created. A person eligible to fill a de jure office, when duly appointed or elected to such office, upon his qualification and commission by the proper authority becomes a de jure officer. “And if a public office is vacant because of incumbent’s suspension, it becomes, as to the suspended person, for the time being as though it did not exist, and as to the public the person appointed to fill the vacancy is the sole incumbent of the office.” 46 C. J. 983, § 144; Gray v. Independence County, 166 Ark. 502 (226 S. W. 465), and cit. Where there is an office and there arises therein a suspension by vacancy, and another is appointed by the appointing power to fill such vacancy, and the appointee qualifies and is duly commissioned, such appointee becomes, until the suspension is removed, a de jure officer as to such office. The public may lawfully deal with him as such officer, and therein is fully protected. The conclusion inevitably follows that the lawful authority vested in the Governor the power to suspend the State Treasurer and to appoint another to perform the duties of the office during the suspension. The Governor having suspended Hamilton as Treasurer in accordance with the provisions of the statute, and having appointed and commissioned Daniel as State Treasurer to fill the vacancy caused by the suspension, Daniel, having qualified and assumed the duties of the office as such, became and is, during the suspension, the de jure State Treasurer. All persons having business with the' State Treasurer are lawfully authorized to deal with him as such, and in such relation they are fully protected by the law. It is not necessary for us to consider whether Daniel would be a good de facto officer, for the reason that under the admitted facts of the case he is a de jure officer occupying a de jure office, that of State Treasurer.

The petition does not present a case for interpleader. The rule of the Code authorizing an interpleader is as follows: “37-1503. (5471) Grounds for grant of interpleader. — Whenever a person shall be possessed of property or funds, or owe a debt or duty, to which more than one person shall lay claim of such a character as to render it doubtful or dangerous for the holder to act, he may apply to equity to compel the claimants to interplead.” The doubt or danger may arise either in law or in fact as to the person to whom the money should be paid. Western & Atlantic Railroad Co. v. Union Investment Co., 128 Ga. 74 (57 S. E. 100). The instant case does not come within the rule for interpleader. The law clearly authorized the Governor to suspend the Treasurer and appoint another in his place. We know judicially that this was done. Code, § 38-112. “The Supreme Court is bound to take notice of who are public officers of this State, where the law requires such officers to be commissioned by the Governor.” Abrams v. State, 121 Ga. 170 (48 S. E. 965). The citizen, as well as the courts, also in law knows this without further proof. We know this also from the pleadings. The suspension and the appointment were made in conformity to the law. During the suspension Hamilton is out, stripped of the authority and functions of the office, while Daniel, the appointee, is in, clothed by the law with full authority to perform all the duties of the office. The doubt referred to in the law that would authorize an interpleader must be reasonable. One may not create for himself a doubt in order to excuse himself from an obligation. It is not intended that one merely quibbling over the law or facts may resort to interpleader and thereby postpone or relieve himself of the performance of a required duty. The doubt must be reasonable and the danger apparent. In this case there is no reasonable doubt under the law as to what person is authorized to receive the State funds and to hold the State securities, or that there would be any danger in accounting to him for such. Daniel, the appointee during the suspension, is the State Treasurer and as such is authorized to receive the State funds. It was admitted on the argument of the case before us, and such could not be well denied, that if the suspension of Hamilton was authorized and done in accordance with law, and Daniel was regularly appointed and commissioned to fill the vacancy caused by the suspension, the bank could pay over the State funds in its deposit to Daniel as Treasurer and in such be relieved'of any further liability. So it appears beyond question that the bank may relieve itself of all obligation to the State in reference to the deposit, and free itself from any further liability thereunder, by simply paying the money to the Treasurer, Daniel, the officer authorized to receive the same. Under such circumstances there is no ground for the interpleader. In so deciding we have not found it necessary to consider whether or not the bank could have safely paid the money to Mobley, under the direction of the Governor, and thus avoided the necessity of an interpleader. Having held there is no sufficient ground for the interpleader, it follows that the cross-petition will not lie. 15 R. C. L. 332, § 15; Smith v. Horton, 144 Ga. 495 (87 S. E. 655). Whereupon we hold that the court, on the grounds herein discussed, erred in overruling the demurrers to the petition and cross-petition. Both should have been dismissed on the demurrers. The failure to sustain the demurrers renders nugatory the judgment of the court as to other matters in the petition and cross-petition. Having decided the case upon the issues herein stated and discussed, it is unnecessary to consider and decide other questions raised by the record, which we find are unessential to its proper determination.

Judgment reversed.

Presiding Justice Beclc, Justice Hutcheson, and Judges Dickerson and Rourlce concur. Judge Knox dissents.