Opinion
13246.
APRIL 10, 1940.
Injunction. Before Judge Smith. Lanier superior court. December 16, 1939.
A. N. Durden, H. W. Nelson, B. D. Murphy, and Copeland Dukes, for plaintiffs in error.
J. P. Knight, James A. Branch, Thomas B. Branch Jr., and Franklin Eberhardt, contra.
1. Where an officer is in possession of an office, and another person, even though he be a claimant thereto, seeks to interfere by force with such possession, a court of equity, at the instance of the incumbent, will prevent such interference until right to the office has been determined in a proper proceeding.
2. That provision of the act approved August 18, 1919 (Ga. L. 1919, p. 242), as amended by the act approved August 10, 1921 (Ga. L. 1921, p. 199; Code, § 95-1603), relating to the office of chairman of the State Highway Board, was not repealed by the act approved March 3, 1937 (Ga. L. 1937, p. 906).
3. Even though an appointment may have been made to an office where the term of the incumbent has not expired, and in pursuance of the order of appointment the incumbent has been forcibly removed from the room or quarters of his office, and thereby deprived of the opportunity of exercising the duties of the office, such incumbent will in equity nevertheless continue to be treated as the incumbent for the purpose of protecting him in his right to function as such official, pending a judicial determination of the validity of such appointment.
4. It is not erroneous, on interlocutory hearing, to require a defendant to restore the status as it existed at the time the restraining order was granted.
5. The injunctive order complained of was not void for indefiniteness and uncertainty.
6. A suit of the character indicated above is not a suit against the State.
No. 13246. APRIL 10, 1940.
On December 4, 1939, W. L. Miller filed his petition against Lawson L. Patten, Marvin S. Griffin, Clay Camp, and W. C. Grimes, alleging, that on March 3, 1937, petitioner was appointed by the Governor as chairman of the State Highway Board, and as such was commissioned on that day for a term of six years, which appointment was subsequently ratified and confirmed by the Senate; that on March 3, 1937, he entered upon his duties as such chairman, and ever since that time has been exercising the duties imposed upon him as such; that as chairman he was assigned to an office in the State Highway Building in the City of Atlanta, and took possession of the office, and has since been in possession; that he was also placed in charge of all the records and papers appertaining to the office of chairman, and has since been in possession, without interference, until recently; that the defendants entered into a conspiracy to obstruct and impede him in the performance of his duties as chairman of the State Highway Board, to destroy him as a public officer, and to force him to abandon the office; that, in pursuance and in furtherance of said conspiracy, the defendants Griffin, Camp, and Grimes, on the afternoon and evening of December 2, 1939, illegally interfered with, obstructed, and impeded petitioner in the performance of his duties as chairman, in the following manner: (a) They entered the office and bluntly stated to petitioner that he could no longer hold and exercise the office as chairman of the State Highway Board, asked that he peacefully retire from the office, and at the same time threatened him with the further statement that if he refused to leave they would forcibly drag him out of the office. He replied that he did not intend to leave the office, but would continue to stay and perform his duties as chairman. This colloquy took place several times, and in substance the same thing was done each time. (b) Subsequently and in the evening and night of December 2, 1939, said defendants came again to petitioner's office, while he was still performing his duties as such chairman, made the same threats against him, and undertook to put such threats into execution by seizing him while he was grasping his desk, and forcibly broke his grasp with such violence as to bruise and wound his hands and arms so as to cause blood to flow freely from such wounds. (c) Said defendants thereupon proceeded to take petitioner by physical force and violence and drag him from the room in the State Highway Building, which he alleged he occupied in his official capacity, into the hallway, and by their conduct created such a violent disturbance and breach of the peace as to cause bystanders, whose names are unknown to petitioner, to become involved in the affray, which resulted in a "free-for-all fight." (d) Said defendants continued to hold petitioner and by physical force and violence prevented him from returning to the room which he occupied as an office and in his official capacity, and repeatedly stated to him during the course of the affray that they intended to throw him out of his office and install the defendant Lawson L. Patten therein in his place and stead. (e) Thereupon said defendants themselves, or through their agents, servants, employees, and confederates, removed or caused to be removed from the doors to the room which petitioner occupied in his official capacity the locks and the fastenings.
Further allegations: During the time the acts of violence were committed Lawson L. Patten was in Atlanta, aiding and abetting his co-conspirators in the commission of said illegal acts. Pursuant to said conspiracy, Patten threatens to and will take possession of all the books, records, and official papers of the chairman of the State Highway Board, of which petitioner is rightfully in possession, and will either by himself or with the aid of his co-conspirators repeat the performance of the evening of December 2, 1939, as hereinabove outlined, and will commit other acts in furtherance of said conspiracy for the purpose of preventing and obstructing petitioner from continuing the performance of his duties as chairman of the State Highway Board, and will attempt to usurp the office, all to the injury and damage to petitioner and to the injury and damage of the citizens of the State of Georgia, whose tax money is administered and spent by the State Highway Board, and will do personal injury and violence to petitioner in the furtherance of said conspiracy; all of which acts said defendants will do and repeat unless enjoined by the court. The threatened acts of the defendants will result in irreparable damage and injury to petitioner and to the State Highway Board and to the citizens of the State; and unless each and all of the defendants are enjoined, the illegal acts as already committed and as threatened will result in interminable confusion and chaos in the administration of the funds and affairs of the State Highway Board.
Among the prayers were, that until the hearing to be had upon his petition, the defendants and each of them and their agents, employees, servants, and confederates be restrained from interfering with, obstructing, or in any manner molesting petitioner in the discharge of his duties as chairman of the State Highway Board and in the occupancy and use of the room in the State Highway Building which has heretofore been assigned to and occupied by him in his official capacity, and from interfering with, obstructing, or in any way molesting his possession and control of the records, books, documents, and files of the State Highway Board, of which he alleges he has the lawful custody and possession; that at the hearing they be so enjoined until the final decree is entered; that upon the final trial of the cause they be perpetually enjoined; and that petitioner have such other and further relief as to the court may seem meet and proper. The petition was sworn to. The judge to whom it was presented passed the following order: "The foregoing petition read and considered. Let the same be filed, process issued, and second originals and copies thereof issue for the defendants who are non-residents of Lanier County, Georgia, and the defendants be served forthwith with a copy of said petition and of this order, and required to come into court and answer this complaint. Let the defendants and each and all of them show cause before the undersigned at his chambers at Nashville, Georgia, at 10 o'clock a. m., eastern standard time, on the 9th day of December, 1939, if any they can, why the prayers of this petition should not be granted as prayed. In the meantime, and until the further order of the court, said defendants and each and all of them, their agents, servants, employees, and confederates are hereby restrained from in any manner interfering with, obstructing, or molesting petitioner in the discharge of his duties as chairman of the State Highway Board and in the occupancy and use of the room in the State Highway Building which has heretofore been assigned to and occupied by him in his official capacity, and from interfering with, obstructing, or in any way molesting possession and control of petitioner over the records, books, documents, and files of the State Highway Board, of which petitioner has the lawful custody and possession, as prayed. This the 4th day of December, 1939.
"W. R. Smith, Judge, Lanier Superior Court."
The defendant Patten filed a demurrer and an answer.
At interlocutory hearing the petitioner offered an amendment, which was allowed, as follows, omitting the formal parts: "Since the granting of the restraining order in this case the defendant L. L. Patten in co-operation with his codefendants and others acting as their confederates have by force and in violation of the restraining order taken charge of the records and documents appertaining to the office of chairman of the Highway Board and have deprived petitioner of access to them and have excluded him from his office and interfered with him in performing the duties of his office Wherefore petitioner prays that the court require the defendants, their employees, agents, servants, and confederates to restore the status as it existed, and that they be enjoined as prayed in the petition, and that this amendment be allowed." This amendment was sworn to by petitioner. None of the defendants other than Patten filed an answer. In his answer he denied the material allegations of the petition, including the allegations of his participation in any conspiracy; and further set out that James L. Gillis, Herman H. Watson, and Patten composed the State Highway Board of Georgia, and that Miller was not a member thereof and had not been since December 2, 1939, nor since that time has he been exercising any duties of chairman of said board, and had no right to occupy any portion of the highway building.
The evidence shows the following: On Saturday night, December 2, 1939, the defendants Griffin, Camp, and Grimes forcibly ejected the plaintiff from his office in the highway building. On Sunday night the defendant Patten was given a key to the office by the Governor's secretary. Sometime on Monday Patten entered the office in the highway department building formerly occupied by the plaintiff and from which he had been forcibly ejected on Saturday night, and undertook to assume the duties as chairman of the State Highway Board. He took possession of all the records and documents pertaining to the office as chairman, and later in the same week, when he moved to another room, he removed these records and documents to his new room in the same building. Patten testified that he knew, on Saturday, December 2, 1939, as well as Sunday, December 3, 1939, about the plaintiff being forcibly ejected from his office, and that he read about it in the newspapers on the following Monday, December 4. Miller testified that on Monday morning he went back to his office; that he walked into the contact secretary's office; that he had never met her; that she had been sent over there from the Capitol to take the place of the secretary that the board formerly had; that he walked to his office door, and one of the guards took hold of his arm and said that he could not go in there, he telling the guard that it was his office, the guard replying: "It used to be your office;" that he was not permitted to enter his office, and turned and walked out into the corridor; that he in a moment or so saw Patten and said to him, "I understand you have ordered my mail to be sent to your office, and I don't want to have to embarrass you any, Lawson; and I am telling you now, I don't want you to have my mail;" that Patten did not say anything, and Miller went back into the board room and made the statement that he was going to adopt that as his temporary office; and that on Thursday, December 7, he went for the third time to his office for the purpose of going to work; the door being partly opened he walked in, hung up his coat and hat, and called for his secretary, telling her that they were ready to go to work. He was again forcibly ejected from the room. Patten was not present on December 2 or on December 7 when Miller was taken by force from his office. It was also in evidence that Patten had been sworn in as chairman of the State Highway Board, under an appointment by the Governor. A portion of Miller's petition in quo warranto, filed by him on December 9 against Patten, was introduced, in which occurred the statement that "said defendant has attempted to and has usurped said office," referring to the office of chairman of the State Highway Board, and the further statement that "said defendant is attempting to discharge and is discharging the duties of said office." Patten testified, that he was in the Governor's office Saturday December 2, "right about twelve o'clock," and that on Monday morning he began discharging the duties as a member and chairman of the State Highway Board; that on Saturday afternoon there was a meeting of the board, at which he was elected chairman; that he did not undertake to discharge his duties or occupy any room in the highway building until Monday morning; that Miller at no time thereafter participated in any meeting of the board or performed any functions as chairman; that on Monday morning, December 4, he (Patten) went to the office in the highway department that Miller had formerly occupied, and entered with a key which was furnished to him by Grimes, the assistant custodian, on Sunday night, December 3, about eight o'clock at the highway building; that he went in the office that night, but he did not know that the lock had been changed; that he had been told by the Governor's executive secretary that the keys would be there at the building that night, and for him to call and get them; that he received that information on Sunday afternoon on the telephone, at the home of his wife's niece in Atlanta; that he had not been told that the locks had been changed, but he had heard it, possibly from the Governor or from Griffin, and he presumed that the locks were changed for the purpose of preventing Miller from going back in that office and having access to the records there — he so understood; that he did not know in advance about the plans of ousting Miller, but learned Saturday night by telephone that he had been ousted, and it was his impression, before he heard it, that Miller was to be ousted, if necessary, by force; that he (Patten) had already accepted the chairmanship and the membership on the board before he had any of this information; that he had not accepted the chairmanship or membership when he went over to Miller's office on Saturday morning; that at that time he thought he knew that Miller was going to be thrown out if he declined to get out; that he thought he knew that before he agreed to accept the chairmanship, and that that was one of the main reasons why he went to see Miller, who he thought possibly would resign; that he read the Atlanta papers on Sunday, December 3, read the account in them about this trouble on December 2, and thought he read most of the Atlanta daily papers and was acquainted with the contents that appeared in them; that on December 4 he read the account of this highway controversy and again on December 5, and every day thereafter; that on Monday he read in the papers that Miller had filed this suit and that an injunction had been issued; that he did not understand that part of it with regard to restraining him and these other people from interfering with Miller as chairman of the highway board; that he read what was in the papers about it, and that Judge Smith had issued a restraining order in the matter, read that in the Atlanta Georgian of December 4 (then he said he did not remember reading the Georgian, but that he read the Journal and the Constitution, and that he would not say positively that he read that in the Georgian); that he did read in the Georgian that "Miller defies ouster," and that Miller had adopted a new Capitol office; that he (Patten) read the Atlanta Georgian that day, and read that article in the Atlanta Journal of December 4, entitled "Two Highway Chairmen on duty at Capitol as Miller occupies nearby office," and also read the article, "And Federal Funds Endangered;" that he talked to the sheriff of Lanier County on Monday night about this suit; that the sheriff told him that Judge Smith had issued a restraining order and that the papers would not be served, that they were in Mr. Miller's room and that Mr. Miller said they would not be served, that he did not know why. Patten testified that he made further inquiry to see whether the suit was going on; that he called Col. Homer Nelson of Adel, and asked him to go over to Lakeland and see if there was anything on file down there, and Nelson did go, and called him back and told him that there was no record down there of any suit where any restraining order had been filed against him; that after he was served with a copy of the suit on Wednesday night, he did not continue to act as chairman, but only as a member of the board, but he thought he was still chairman of the board; that when he testified that the board had been in continuous session he meant that all three members of the board have acted for and in the capacity as chairman, signing all papers where the signature of the chairman had been required; that he and the other members of the board had been trying to perform the duties and functions of the chairman, and that was the way they had been operating since he was served with the restraining order; that on Monday, December 4, when he went in and took charge as chairman, he found documents and books relating to the highway department in the office that Miller had just been forced out of, and took charge of them, but did not think there were any books and papers in the office at the time he was testifying that were in there on December 4; that he switched over to the other office and moved them to it; and that he still had them in his office and was holding them as a member of the board, jointly with the signatures of the other two members.
Patten introduced in evidence the following orders of the Governor:
"STATE OF GEORGIA (SEAL). EXECUTIVE DEPARTMENT, ATLANTA.
"E. D. RIVERS, Governor. DOWNING MUSGROVE, Secretary Executive Department.
"BY THE GOVERNOR:
"Whereas section 89-101 of the Georgia Code of 1933 provides, among other things, that persons holding any office of profit or trust under the government of the United States (other than that of Postmaster and officers of the Reserve Corps of the United States Army, Navy, or Marine Corps), or of either of the several States, or of any foreign State, are held and deemed ineligible under the law to hold any civil office, and the existence of any of these facts shall be sufficient reason for vacating any office held by such persons; and Whereas section 89-501 of the Georgia Code of 1933 provides, in part, that all State offices shall be vacated by virtue of any officeholder abandoning the office and ceasing to perform its duties, or either; and Whereas the said section 89-501 of the Code also provides that offices in the State shall be vacated by resignation, when accepted; and Whereas it has been made to appear to me that Honorable W. L. Miller has ceased to perform the duties of the office to which I appointed him, namely, chairman of the State Highway Board and member of the board, and instead of performing such duties is using said office and the prestige, power, and influence thereof to stir up issues, create strife inimical to the best interest of the State, and advance his selfish political interests in an effort to build a gubernatorial campaign for himself, and on different occasions the said W. L. Miller, as chairman and member of the Highway Board aforesaid, has stated to me, as Governor of Georgia, that if I desired to accept his resignation I could do so, and that he would `go home:' therefore
"It is ordered that the office of chairman of the State Highway Board of Georgia and that of member of the State Highway Board of Georgia, heretofore held and occupied by Honorable W. L. Miller for the term ending February 1, 1943, be and the same are hereby vacated; and a vacancy in said offices is hereby declared and found to exist. It is further ordered that the resignation aforesaid of W. L. Miller be and the same is hereby accepted.
"And it is so ordered this the second day of December, 1939.
"E. D. Rivers, Governor."
"State of Georgia, Executive Department, Atlanta.
"By the Governor:
"Whereas section 91-402 (146) of the Code of Georgia gives the Governor `general supervision over all property of the State, with power to make all necessary regulations for the protection thereof,' and gives the Governor the mandatory authority to `assign rooms' in the Capitol; and Whereas in the exercise of such authority, room No. 104 at that part of the Capitol known as the Highway Building, heretofore assigned to W. L. Miller as a member and chairman of the highway board, is hereby assigned to L. L. Patten as a member and chairman of the highway board; and it is so ordered.
"It is further ordered, that any person seeking to occupy said room, other than L. L. Patten, be likewise removed from said highway building property of the State Capitol; and it is further ordered, that for the necessary protection of said room and property, that the following regulation be applied thereto: Any person or persons seeking to occupy said room, other than said L. L. Patten, be prohibited from entering said room of said Capitol property. It is further ordered, that the custodian of the Capitol, the night watchman of the Capitol, and the Capitol guard or police be and they are hereby instructed to enforce the terms of this order and to deputize any such officers necessary to carry out the same. And it is so ordered, the second day of December, 1939.
"E. D. Rivers, Governor."
At the conclusion of the evidence the following order was entered (omitting the caption):
"This matter having come on for hearing on this day, on the application of the plaintiff for interlocutory injunction, and Hon. W. E. Thomas, Judge of the Superior Courts of the Southern Circuit, and Hon. Marcus D. Dickerson, Judge of the Superior Courts of the Waycross Circuit, who were invited to sit with the undersigned in an advisory capacity, having accepted that invitation, and the court having heard evidence and argument of counsel, the court finds, adjudges, and now orders that the interlocutory injunction prayed for in the petition should be granted, and that the restraining order heretofore granted in said case should be continued of force until the further order of the court. It is therefore ordered that the restraining order granted in this cause on Dec. 4th, 1939, be and it is continued of force and effect, and the defendants, their agents, confederates, employees, and all persons acting for them or in conjunction with them are enjoined until further order of the court from doing any of the acts or things from which the defendants were restrained in said restraining order, and from interfering with or molesting plaintiff in the performance of his duties as chairman of the Highway Board of Georgia. It is further ordered that said defendants shall restore to the plaintiff as chairman of said highway board the books, records, and documents which were removed by them, or either of them, from the office, or possession of the plaintiff as chairman of said board on or after Dec. 4, 1939, and to restore the status as to the matters and things as to which the plaintiff sought injunction in said petition, as such status stood on Dec. 4th, 1939, at one o'clock a. m., the time said restraining order was granted. Hon. W. E. Thomas and Hon. Marcus D. Dickerson concur fully with the undersigned as to this order and the court's findings as set forth herein. In open court, December 16th, 1939.
"W. R. Smith, Judge S.C. A. C."
Endorsed on the order is the following: "Filed in office Dec. 16, 1939. W. H. Howell, Clerk."
To this order Patten excepted. Error is assigned on the allowance of the amendment, on the order of the judge continuing in force the restraining order, and on his ruling requiring the defendants to restore the status as the same stood at the time said restraining order was granted.
The record before us presents the following features. Miller, on March 3, 1937, was appointed, commissioned, and confirmed by the Senate as chairman of the State Highway Board for a term of six years, since which time he has been exercising the duties as such. On December 2, 1939, while in the quarters assigned to him in the State highway building, and while in the performance of his duties as such chairman, he was by the defendants Griffin, Camp, and Grimes obstructed and impeded in the performance of his official duties in the manner set forth in detail in the foregoing report of the facts, culminating in the forcible ejection of Miller from the room he had been occupying as an office; and they removed or caused to be removed from the doors to the said room the locks and fastenings. Patten denies that Miller was on the said date a member of the State Highway Board, and takes the position that Miller had no right to occupy any portion of the State Highway Department building. Miller's petition alleged that Patten was a party to a conspiracy to obstruct petitioner in the performance of his duties as chairman of said board and to force him to abandon the said office. Patten, on the day the restraining order was issued, assumed to act first as chairman under a commission issued to him as such by the Governor, and then as a member of the highway board, and moved into the quarters assigned to the chairman of the highway board. He testified that he had information beforehand that Miller would be removed. Patten was given new keys to the office that Miller had been occupying, and understood that the locks had been changed for the purpose of preventing Miller from regaining access thereto, and from having access to the records.
1. We are called upon to declare the law applicable to the state of facts here presented. As was observed by Judge Benning in Robinson v. Lane, 19 Ga. 337, 393, "There is but one question for a court: What is the law?" It was the statement of Mr. Justice Baldwin, in Ex parte Crane, 5 Peters, 216 ( 8 L. ed. 92), that "Questions of jurisdiction and powers ought neither to be sought nor avoided." Courts should be careful not to assume a power where none exists, but equally as imperative a duty rests upon them not to shirk a ruling on a matter within their jurisdiction, duly presented for judicial determination, and applicable to the issues arising in the case. Where an officer is in possession of an office, and another person, even though he be a claimant thereto, seeks to interfere by force with such possession, equity will, at the instance of the incumbent, interpose its arm to prevent such interference until the right to the office has been determined in a proper proceeding. The power and duty of courts of equity to interfere by the exercise of their preventive jurisdiction to protect the possession of officers de facto is generally recognized. High on Injunctions, § 1315; Joyce on Injunctions, § 1380; 46 C. J. 1059, § 376; 22 R. C. L. 590, § 311; Mechem on Public Officers, § 994. The principle just stated was recognized and applied by this court in the recent case of Sutton v. Adams, 180 Ga. 48 ( 178 S.E. 365), where a number of authorities in harmony with the ruling there made were collected. The decision in Arnold v. Hilts, 52 Colo. 391 ( 121 P. 753, Ann. Cas. 1913E, 724), which was cited with approval in the Sutton case, supra, endorses the following statement from the Supreme Court of Indiana in Huntington v. Cast, 149 Ind. 259 ( 48 N.E. 1025): "The welfare and good order of society and government require that those engaged in the discharge of public duties should not be disturbed by claimants whose right to discharge such functions is as yet uncertain. Equity will protect the possession of the incumbents from any unlawful intrusion." While the incumbent holding a commission under appointment, and confirmation by the Senate, has certain rights which a court will respect, the larger view which can not be overlooked is that society itself is vitally interested in the proper discharge of public duties imposed by law on such officer.
One of the contentions of the plaintiff in error is that Miller's removal from the room which he had formerly occupied as a member and chairman of the board was done in pursuance of an executive order purporting to have been issued under the Code, § 91-402, providing that the Governor shall have authority to assign rooms in the Capitol and shall have general supervision over all property of the State, that therefore Miller's removal from the quarters previously occupied by him was lawful, and that Patten's subsequent physical possession thereof was in like manner lawful and could not be affected by any injunctive order. There is no merit in the contention as thus presented to this court, since Miller testified, without dispute, that he had not resigned or otherwise vacated the office, as declared by the Governor, since the judge was authorized to find that such ejection order was bottomed or conditioned upon the theory that such vacancy did exist, rather than amounting to an assignment of rooms or space as among existing officers. In these circumstances, and since the Governor would have no authority to appoint a successor unless a vacancy did exist (see Patten v. Miller, post, 123, 152), the court was authorized to preserve the original status as by injunction, pending a determination in a proper proceeding whether the office was in fact vacated as declared by the Governor. In Ann. Cas. 1913E, 737, following report of Arnold v. Hilts, supra, it is pointed out that a public office is a franchise, and not a mere tangible combination of rooms, tables, books, and papers, and that loss of the physical possession of such tangible property does not necessarily dispossess the officer of the intangible franchise entrusted by law to him as a public office; quoting from Sullivan v. Haacke, 7 Ohio Dec. 113. While it appeared on the hearing that at the time the petition for injunction was filed Patten had, by virtue of the ejection of Miller under the above-mentioned order, taken physical possession of the quarters theretofore occupied by Miller, and the books, records, documents, and files of the highway board theretofore in the possession of Miller, such possession was, under what has been said above, a trespass upon the de facto incumbent, and a court of equity might enjoin a continuance thereof. Such an injunction is not in such case subject to the objection that it is mandatory. "While under the Code an injunction which is purely mandatory in its nature can not be granted, the court may grant an order the essential nature of which is to restrain, although in yielding obedience to the restraint the defendant may incidentally be compelled to perform some act." Goodrich v. Georgia Railroad Banking Co., 115 Ga. 340 ( 41 S.E. 659).
2. Counsel for Patten urge that the foregoing rule of law is not applicable to the record before us, because Miller bases his right on the contention that he is chairman of the State Highway Board of Georgia, when in fact there is no such office, and no duties to be performed by the chairman are prescribed by law or disclosed by the record to have been otherwise prescribed. In 1919 the General Assembly passed a measure reorganizing the State Highway Department. Georgia L. 1919, p. 242. In 1921 this act was amended in certain particulars. Ga. L. 1921, pp. 199-203. An act was approved on March 3, 1937, the title to which was as follows: "An act to abolish the State Highway Board of Georgia, and to repeal Code sections 95-1601 and 95-1602 of the Code of Georgia of 1933, said sections having reference to membership, appointment, and terms of the members; and for other purposes." Ga. L. 1937, p. 905. On the same day another act was approved, the title to which is as follows: "An act to create the State Highway Board of Georgia, providing for membership thereof, the appointment and terms of office, to provide that said board shall perform all of the duties heretofore performed by the State Highway Board of Georgia; and for other purposes." Ga. L. 1937, p. 906. In this last act no reference is made to the chairman of the board; nor on the other hand does it purport expressly to repeal Code § 95-1603, codified from the act of 1921 above referred to, which provides for the office of chairman. Considering together the two acts of 1937, approved on the same day, we conclude that it was the intent of the legislature merely to replace the provisions of § 95-1601 and § 95-1602 of the Code with the provisions of the act of 1937 creating the new State Highway Board. While the caption of the act last referred to embodies the words, "to provide that said board shall perform all the duties heretofore performed by the State Highway Board of Georgia," the body of the act contains no such provision, but merely creates a highway board without defining any powers of the board. It would be dangerous to assume that the General Assembly intended to repeal by implication every provision of the old law with respect to the highway board, and then to create a new highway board without any law defining its duties and powers. Such a result would seem to follow if it be held that the new act of 1937 abolished by implied repeal the former provision of law creating a chairman. We are fortified in the view that it was not so intended by the fact that the same General Assembly passed an act, approved March 19, 1937, creating the Department of Public Safety, and provided that the department shall be composed of certain persons including "the Chairman of the Highway Board." Ga. L. 1937, p. 322. In harmony with our ruling is the fact that the Governor appointed Miller to the office of chairman of the State Highway Board, and issued to him a commission as such, and that the Senate confirmed his appointment to that office. See Ga. L. Ex. Sess. 1937-1938, p. 528, where it seems to have been recognized that the office of chairman of the board has not been abolished. The very title, chairman of the board, carries with it the idea that the occupant of such office has certain duties, such as presiding at board meetings, etc., which are not shared by the other members. There may be still other duties which need not be here declared; nor is it necessary to decide whether the act of 1922 (Ga. L. 1922, pp. 115-117), as to salary and powers incident to that office, was in either respect repealed by the act of 1925 (Ga. L. 1925, pp. 208-211) or by any other subsequent act, or by the codification of the laws.
3. It is also insisted by counsel for Patten that the law as announced in Sutton v. Adams is not applicable here, because Patten, and not Miller, was in possession of the office at the time the injunction proceedings were instituted. The petition was presented to the judge and he granted a restraining order thereon at one o'clock on the morning of Monday, December 4. On Saturday morning, December 2, Patten went to the office of Miller and advised him that he would be put out of his office if he did not resign, and inquired whether it would be satisfactory to Miller for Patten to be appointed chairman of the State Highway Board. Miller stated that he was not going to vacate the office. Patten thereupon went directly to the office of the Governor, and remained in the City of Atlanta all that day and night. We have set forth in the statement of facts, a resume of important parts of the testimony bearing on the issue thus raised. The argument of counsel for Patten leads to this: that one may be deprived of the possession of his office by physical force, and may be denied by force the privilege and opportunity to exercise its duties, and that when he is so deprived, and when a rival claimant gets possession of this office in such a manner, equity has no jurisdiction by injunction to aid the ousted officer. So we have this question of law to determine: If an incumbent in office, having possession and performing the duties of it, and seeking to continue in said office and to exercise the functions thereof, is by the use of force and violence deprived of the physical possession and occupancy of the room where the duties of the office are carried on, and of the furniture and records therein, is a court of equity by such conduct divested of jurisdiction to protect by injunction the incumbent, so that the claimant in the manner indicated relegates the incumbent to proceed by quo warranto to recover possession of the office, leaving the claimant in possession until a quo warranto proceeding is finally terminated? The authorities on this question fail to support the affirmative of this contention, but on the contrary refute it.
We agree to the contention that a decision sanctioning such a view would amount to an invitation to persons desiring to contest for an office to resort to violence to obtain and retain physical possession, and thus to shift the burden. The temptation would be for a contender for a public office held by another person claiming the right to continue therein, to muster a force large enough to enable him to seize violently the physical possession of the room and equipment and to hold them by such violent means; and a like temptation would thereby be held out to the ousted occupant to try to muster a large enough force to regain possession, thus inaugurating an unseemly show of physical force with possible bloodshed. In Sutton v. Adams, supra, this court, in referring approvingly to the decision in Arnold v. Hilts, supra, observed that "it was held even that where an incumbent holding an office under a prima facie legal right has been actually ousted by private physical force, a court of equity may restrain the intruder from interfering with him in the performance of his official duties. In the opinion it was said: The plaintiff `was inducted into office peacefully and lawfully, and, under the facts as they exist here as between him and the defendant claimant, he should be allowed to vacate peacefully, or be lawfully removed, and, until such time comes, he should be protected by the courts in such possession.' The foregoing principles represent the weight of authority, and so far as they might apply to a case like the present they are in accord with the law of Georgia as stated in the Code, and have been recognized and applied by this court." This principle was clearly stated and recognized in the Colorado case of Arnold v. Hilts, supra. That decision quoted approvingly from Braidy v. Theritt, 17 Kansas, 468, as follows: "Where an office is in dispute between two persons, and the one in actual possession of the office steps out of the place where the business is usually performed, but with no intention of abandoning the office, or of giving it to the other person, and such other person with full knowledge of the facts steps in and immediately proceeds to do business as though he is in fact the officer; held, that as between such two persons, the one previously in possession must be considered as the officer de facto." See also Ekern v. McGovern, 154 Wis. 157 ( 142 N.W. 595, 46 L.R.A. (N.S.) 796); Heyward v. Long, 178 S.C. 351 ( 183 S.E. 145, 114 A.L.R. 1130). If Miller was in possession of official documents to which Patten claimed to be entitled by virtue of his appointment, our Code furnishes Patten with a remedy at law to obtain possession thereof, which is both summary and orderly. §§ 89-604, 89-607.
4. The further contention is presented by able counsel for the plaintiffs in error, that it was error to allow the amendment to the petition, requiring Patten to restore the status as it existed at the time the injunction was granted. This contention must be ruled adversely to him, under the principle announced in Byne v. Byne, 54 Ga. 257; Baker v. Weaver, 104 Ga. 228 ( 30 S.E. 726); Murphey v. Harker, 115 Ga. 77 ( 41 S.E. 585).
5. It is urged by counsel for the plaintiffs in error that the injunctive order of December 16, 1939, as entered by the court, is void for indefiniteness and uncertainty. We recognize the rule that if the decree is injunctive, it ought to apprize the defendant of what it is that he shall abstain from doing. Nance v. Daniel, 183 Ga. 538, 542 ( 189 S.E. 21). In 32 C. J. 368, § 620, we find the applicable rule stated as follows: "It is impossible to lay down any precise rule of universal application as to the degree of certainty required, further than the rule that the writ of injunction, or restraining order, should be so clear and certain in its terms that defendant may readily know what he is restrained from doing and that he must obey it at his peril." In 1 High on Injunctions (4th ed.), 52, § 37, the rule is stated as follows: "The writ of injunction should contain a description of the particular things or acts concerning which the defendant is enjoined, in order that there may be no opportunity for misapprehension." The order of December 16, 1939, directed that the restraining order of December 4 be continued in force; and the one must therefore be construed in the light of the other. The two orders are set forth in the statement of facts above. We do not think the criticism is well founded. In the nature of things it would be difficult, if not impossible, to specify every possible act of interference, obstruction, and molestation of the petitioner in the discharge of his duties as chairman of the State Highway Board, or to name every record, book, document, and file of the State Highway Board of which he claimed the lawful right, custody, and possession. The injunction was sufficiently definite to inform the plaintiff in error that he was not to interfere with the incumbent's duties or the papers which pertained to his office.
6. Counsel for Patten urge that the present suit can not be maintained, because it is in reality a suit against the State. We can not sustain this contention. The principle is thoroughly established, that an officer of the State, even where acting under color of his office but beyond the scope of his authority, whether sued to prevent the commission of a wrong or to redress one which has been committed while so acting, can not claim immunity from suit on the ground that the suit is one against the State. Dennison Manufacturing Co. v. Wright, 156 Ga. 789 ( 120 S.E. 120); Stanley v. Sims, 185 Ga. 518 ( 195 S.E. 439); Ex parte Young, 209 U.S. 123 ( 28 Sup. Ct. 441, 52 L. ed. 714); Home Telephone Co. v. Los Angeles, 227 U.S. 278 ( 33 Sup. Ct. 312, 57 L. ed. 510); Sterling v. Constantin, 287 U.S. 378 ( 53 Sup. Ct. 180, 77 L. ed. 375).
Under the pleadings and the proofs, the judgment of the trial court must be
Affirmed. All the Justices concur.