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2002 Three Governors: , the Supreme Court and the Gubernatorial Election of 1946 Lucian E. Dervan Belmont University - College of Law

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Recommended Citation 8 Georgia Bar Journal 41 (2002)

This Article is brought to you for free and open access by the College of Law at Belmont Digital Repository. It has been accepted for inclusion in Law Faculty Scholarship by an authorized administrator of Belmont Digital Repository. For more information, please contact [email protected]. December 2002 Volume 8 Number 3

Non-discriminatory Jury Selection in Georgia

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Manuscript Submissions Advisors The Georgia Bar Journal welcomes the submission of Theodore Harris Davis Jr. unsolicited legal manuscripts on topics of interest to D. Scott Murray the State Bar of Georgia or written by members of the State Bar of Georgia. Submissions should be 10 to 12 Marisa Anne Pagnattaro pages, double-spaced (including endnotes) and on let- ter-size paper. Citations should conform to A UNIFORM Editors Emeritus SYSTEM OF CITATION (17th ed. 2000). Please address unsolicited articles to: Rebecca Ann Hoelting, State Bar Marisa Anne Pagnattaro, 01-02 L. Dale Owens, 87-89 of Georgia, Communications Department, 104 D. Scott Murray, 00-01 Donna G. Barwick, 86-87 Marietta St. NW, Suite 100, , GA 30303. William Wall Sapp, 99-00 James C. Gaulden Jr., 85-86 Authors will be notified of the Editorial Board’s deci- Theodore H. Davis Jr., 97-99 Jarry B. Blackstock, 84-85 sion regarding publication. L. Brett Lockwood, 95-97 Steven M. Collins, 82-84 The Georgia Bar Journal welcomes the submission of Stephanie B. Manis, 93-95 Walter M. Grant, 79-82 news about local and circuit bar association happen- William L. Bost Jr., 91-93 Stephen E. Raville, 77-79 ings, Bar members, law firms and topics of interest to Charles R. Adams III, 89-91 Robert H. Walling, 75-77 attorneys in Georgia. Please send news releases and other information to: Joe Conte, Director of Communications, 104 Marietta St. NW, Suite 100, Officers of the State Bar of Georgia Atlanta, GA 30303; phone: (404) 527-8736; James B. Durham President [email protected]. William D. Barwick President-Elect Robert D. Ingram Secretary Disabilities George Robert Reinhardt Jr. Treasurer If you have a disability which requires printed materi- James B. Franklin Immediate Past President als in alternate formats, please contact the ADA coor- Derek J. White YLD President dinator at (404) 527-8700 or (800) 334-6865. Andrew W. Jones YLD President-Elect Headquarters Peter J. Daughtery YLD Past President 104 Marietta St. NW, Suite 100 Atlanta, GA 30303 Communications Committee (800) 334-6865 (404) 527-8700 FAX (404) 527-8717 William H. Dodson II Chairperson www.gabar.org Aasia Mustakeem Vice-Chairperson South Georgia Office 244 E. Second St. (31794) P.O. Box 1390 Tifton, GA 31793-1390 Communications Staff (800) 330-0446 (912) 387-0446 FAX (912) 382-7435 Joe Conte Director Robin E. Dahlen Assistant Director Sarah I. Bartleson Communications Coordinator

Electronic copy available at: http://ssrn.com/abstract=1462420 December 2002 Volume 8 Number 3

Legal 19 Natural Gas Deregulation in Georgia: A Market in Transition By Charles T. Autry and Roland F. Hall On the Cover Features Striking Out in the Batson Box: A Guide to 28 Historic Law School Hosts 2002 Fall BOG Meeting Non-ddiscriminatory Jury By Robin E. Dahlen Selection in Georgia 31 State Bar Expects Another Productive Legislative Year The Batson challenge in jury By Mark Middleton selection is misunderstood 34 Georgia Bar Foundation Awards $2.3 Million in Grants by many in the field. By Len Horton Edward D. Tolley and 35 Cumulative IOLTA Revenues Surpass $50 Million Jason J. Carter address By Len Horton the issue on page 12. 38 East Meets West: Georgia Delegation Explores China By George Mundy 41 Three Governors: Herman Talmadge, the Georgia Supreme Court and the Gubernatorial Election of 1946 Departments By Lucian Emery Dervan 46 The Grand Old Courthouses of Georgia: 4 From the President The Henry County Courthouse at McDonough 8 From the Executive Director By Wilber W. Caldwell 10 From the YLD President Publisher’s Statement 48 Bench & Bar The Georgia Bar Journal (ISSN-1085-1437) is published six times per year (bi-monthly) by the State Bar of Georgia, 104 Marietta St. NW, Suite 100, Atlanta, GA 30303. © State Bar of Georgia 2002. One copy 52 Office of the General Counsel of each issue is furnished to members as part of their State Bar dues. Subscriptions: $36 to non-mem- bers. Single copies: $6. Periodicals postage paid in Atlanta, GA. Opinions and conclusions expressed in articles herein are those of the authors and not necessarily those of the Editorial Board, 53 Lawyer Discipline Communications Committee, Officers or Board of Governors of the State Bar of Georgia. Advertising rate card will be furnished upon request. Publishing of an advertisement does not imply endorsement 55 Law Practice Management of any product or service offered. POSTMASTER: Send address changes to same address. 58 South Georgia Office 59 Pro Bono Page Advertisers Index 60 Section News AAA Attorney Referral Service. . . . 29 Insurance Specialists, Inc...... 33 ANLIR ...... 51 John Rubio, ELPDG ...... 6 63 In Memoriam Arthur Anthony...... 43 LexisNexis ...... IFC Best Law Firm Solutions ...... 45 Litchfield Plantation ...... 17 65 CLE Calendar Butterfield, Reimer & Associates . . 42 Mainstreet ...... 47 Daniels-Head Insurance ...... 15 Merchant & Gould ...... IBC 71 Notices Daniel Turner Builders ...... 23 Mitchell Kaye Valuation ...... 11 DSI Technology ...... 57 Real Estate Exchange Services. . . . . 9 72 Classified Resources Georgia Lawyers Insurance Co. . . . . 2 SoftPro Corporation...... 21 Gilsbar, Inc...... 7 South Georgia ADR Service, LLC . . . 5 Golden Lantern ...... 61 West Group...... 25, 37, 72, BC Gregory Connor ...... 44 GBJ feature

Three Governors: Herman Talmadge, the Georgia Supreme Court and the Gubernatorial Election of 1946

By Lucian Emery Dervan

was . Eugene erman Talmadge, Talmadge, often referred to as the “wild man from Sugar Creek,” was who died March 21, a Democratic who had 2002, was a gover- served as Georgia’s from H 1933-1937 and 1941-1943 when he nor, senator, and Georgia icon who was defeated by Arnall.1 controlled state politics for much As the campaign evolved, Talmadge dominated the issues of the last half of the 20th century. and made the entire election about . This focus on While many events in Talmadge’s race occurred because of two fed- life deserve attention, one event in eral court decisions involving the right of blacks to vote in primaries. particular stands out amongst the First, in 1944, a Texas court ruled Herman Talmadge served as that blacks must be allowed to vote trials and tribulations, victories from in electoral primaries. This deci- and scandals in this long American 1949 to 1955. sion was followed quickly by the The Election of 1946 filing of a similar suit in Georgia by political life. In 1946, the Georgia Primus King against the Muscogee In 1946, as complet- County Democratic Committee. gubernatorial election brought a ed his final year as Georgia’s gov- King won the suit in federal court state government to its knees, a ernor, the only primary that mat- in 1945 and, after being affirmed tered in Georgia during this peri- by the Fifth Circuit, Georgia’s state Supreme Court to the height od, the Democratic primary, was appeal to the beginning to heat up. Prevented Supreme Court was denied. of its power and Talmadge into the from running for re-election under Talmadge, however, was intent on national spotlight as a revolver tot- Georgia’s constitutional term lim- preventing blacks from voting in its, Arnall’s chosen successor was the primaries and promised a ing aspiring governor. James Carmichael, a state legislator “Democratic white primary.” and supporter. The main opposi- While Talmadge failed to create a tion for the primary endorsement whites-only primary, the issue

December 2002 41 third possible governor, M.E. Thompson, who had been elected Georgia’s first lieutenant governor, waited on the side-lines. In early January, Arnall shifted strategies and aligned with Thompson. The attorney-general, Eugene Cook, issued a ruling stat- ing that the legislature did not have the authority to elect a governor and that Gov. Arnall would remain in the office until Thompson was inaugurated lieutenant governor. On January 14, despite Arnall’s insistence he still held title to the Herman Talmadge campaigns in Royston, Ga., during the 1948 guberatorial office, the legislature took up the race. Talmadge defeated Gov. M. E. Thompson in a special election. issue of electing a governor. It has been reported that as the session helped mobilize voters in rural his belief that should his father die began, Thompson aides began counties for his candidacy. This before assuming office, the Georgia serving laced drinks to Talmadge strategy was successful, and Constitution delegated the authori- supporters in an effort to pass a Talmadge won the Democratic pri- ty to the legislature to elect a gov- resolution instilling Thompson as 5 mary on July 17, 1946.2 ernor from the two remaining can- governor. Any such attempt While most general elections in didates with the most votes.3 failed, however, and the over- the South during this period Those who were concerned had whelmingly pro-Talmadge legisla- involved little more than confirm- their worries validated as ture began preparing to elect him ing the Democratic nominee, the November arrived — the general governor. A problem arose, how- Georgia general election of 1946 election was on November 5 and ever, when Talmadge forces dis- was approached slightly different- Eugene Talmadge won the election covered he had only 617 write in ly by some. As the Democratic con- while still in the hospital. votes, placing him third among the vention approached in October, In all great events, there is one remaining candidates. As noted Eugene Talmadge was already ill decisive moment when the debacle above, the constitution only per- and confined to a Jacksonville, Fla., begins. For Georgia, that moment mitted the legislature to select a hospital. In response to these con- arrived on Dec. 21, 1946, when governor from the next two highest cerns, Herman Talmadge, Eugene’s Gov.-Elect Eugene Talmadge died. vote recipients. The legislature son, initiated a write-in campaign Knowing a storm was brewing in adjourned briefly and reconvened for himself. The reason for this was the capital, the story in the newspa- with a miraculous 58 new votes for per next to the pronouncement of Talmadge from his home county. It Talmadge’s death was a piece should be noted that these titled, “3 Leaders Loom for uncounted votes were all in the Governorship.”4 Immediately, same handwriting, in alphabetical Herman Talmadge (hereafter order and some of the voters were “Talmadge”) began campaigning dead at the time of the election. for support in the legislature. At These new write-in votes gave the same time, Gov. Arnall Talmadge the lead with 675 votes. declared that he would remain in The legislature moved immedi- office until such time as a special ately to elect and inaugurate election was held and a successor Talmadge, who then made his way chosen. While Talmadge and to the governor’s office upstairs Arnall began a war of words, the where Arnall had barricaded him-

42 Georgia Bar Journal self in with several supporters. mobilized and positioned around The Courts Talmadge and his aides broke the capital, but conflict was avert- down the door and a fight erupted ed. At one point, however, Three major suits became the resulting in numerous injuries, Talmadge troops seized furniture focus of the judiciary’s involvement including a broken jaw for Thad from Arnall’s secretary and stenog- in the controversy. In each, the Buchanan, an Arnall supporter. rapher and took control of the underlying question was who held The evening ended peacefully, switch board. As citizens feared a rightful title to the office of gover- however, with Arnall being escort- war may break out on the streets of nor. To resolve this issue, the courts ed safely home as Talmadge and Atlanta, Arnall and Talmadge each had to examine the state constitu- 8,000 to 10,000 of his supporters acted as governor and denied the tional mandate that the legislature filled the capital. other’s authority to control the may only intervene in the election if The next day the locks were executive branch of government. “no person shall have” a majority of changed, but Arnall still arrived for Thompson, who had been on the the vote. What made the analysis work as if he were governor. side lines during much of the clash particularly difficult was the fact Unable to enter his office, Arnall between Arnall and Talmadge, that Eugene Talmadge had conducted business at a desk in the reemerged on January 18 when he received a majority of the vote in capital rotunda. This temporary was sworn in as lieutenant gover- the election, but, because of his sub- facility was abandoned by Arnall nor. Shortly after the ceremony, sequent death, no one possessed a when pro-Talmadge supporters Arnall resigned and Thompson majority at the time the legislature lobbed firecrackers into the desk claimed to have succeeded to the published the results. The question area, after which point Arnall office of governor. Thompson was remained, therefore, had the consti- retired to a nearby law office, then substituted as plaintiff in the tutional requirements for legislative though Talmadge supporters suit initiated by Arnall, which intervention been met? claimed he had commandeered the became the focal point of the dis- The first suit, as discussed men’s bathroom. The day was not pute. The battle was no longer above, was initiated by Arnall and any less dramatic for Talmadge, spilling into the streets or taking later carried on by Thompson, who who arrived for his first day as place in the corridors of the state was substituted as plaintiff after governor with a .38 caliber Smith & capital. After Thompson’s assump- assuming the office of governor. Wesson in his pocket. tion of power, two governors sat in The case was heard by Judge Almost immediately after separate offices and claimed to be Walter C. Hendrix, who ruled in Talmadge’s inauguration, Arnall the rightful holders of executive favor of Talmadge. The lengthy filed suit attempting to enjoin power. The dispute would last for decision came to the conclusion Talmadge from acting as governor. two more months until the Georgia that the constitution did not intend While the court set a hearing for Supreme Court finally resolved the the legislature only be able to act if February 7, more dangerous moves matter. no one, including the deceased, were being made by the Arnall and Eugene Talmadge, had received a Talmadge camps as each fought for majority. control of the military. During World War II, the was mobilized and, as a result, another institution called the State Guard was created as its temporary replacement within the state. In 1946, however, the National Guard had returned, yet the State Guard had not been dis- banded. To make matters worse, the National Guard supported Talmadge and the State Guard Supported Arnall. The troops were

December 2002 43 A dispute over the highest office in the state had involved barricaded doors, fights in the capital, armed militias surrounding government buildings and candidates carrying weapons to protect themselves as they attempted to exercise the executive powers.

Construing the Consti- in Floyd County, the court this time imperfections, but that when tution as we do, it is clear that supported Thompson. popular elections do not the General Assembly had the [T]he General Assembly achieve a result, representa- right to decide when there was, under this provision of tive government steps in to was no election by the people. the Constitution, without prevent a complete break- It did decide that on account jurisdiction to declare any per- down. Government, like life, of the death of the Governor- son to have been elected gov- must go on.8 Elect there had been no elec- ernor of Georgia, there sole The cases now stood two for tion by the people. In our right being confined to the Talmadge and one for Thompson. opinion the Constitution then right to declare that Eugene The State Supreme Court would put the duty and responsibili- Talmadge had received a have to resolve the issue lest the ty on it to elect and install a majority of the votes cast for uncertainty that inhabited the capi- Governor. This duty and governor of Georgia in said tal continue indefinitely. responsibility it decided as it election; that therefore, Ellis The three cases from the lower saw fit. When it acts within Arnall continued in office as courts were appealed directly to its authority courts cannot governor until his resignation; the Georgia Supreme Court and interfere.6 and that M.E. Thompson hav- were argued and decided together. Under this interpretation of the ing been elected and so The reason for moving the issue constitution, Arnall had not contin- declared by the General directly before the Supreme Court ued in office until Thompson was Assembly, and having quali- was to speed up the case. The Chief sworn in as lieutenant governor, fied as lieutenant governor of Justice of the Georgia Supreme and, therefore, Thompson had not the State of Georgia, upon said Court remarked, “[i]f counsel for succeeded to the office of governor. resignation becoming effec- both sides should agree to acceler- The second case was Bryars et al. tive, became acting governor ate the hearings in the several cases v. Thompson, in which Thompson of Georgia…7 involving the governorship before sued the Board of Pardons and Thus, the lower courts were now the Supreme Court, I am sure the Parole to force them to deliver cer- split over who was the rightful Court would entertain such a tain information to him as gover- governor. motion.”9 Agreeing to the acceler- nor. Heard by Judge Claude Porter The final case was Fulton ated appeals process, the three National Bank of Atlanta v. Talmadge cases were docketed for March 6 et al., in which the bank filed suit to before the Georgia Supreme Court. Pick Up determine whether Talmadge or On March 19, 1947, the Georgia Gregory Conner Thompson rightfully controlled Supreme Court, in a 5-2 decision, October page 40 state funds held by the bank. The ruled that Thompson was rightful- case was decided by Judge Bond ly governor, and the controversy Almand in Henry County and, was over as quickly as it began.10 concurring with Judge Hendrix’s The opinion, written by Justice opinion, upheld Talmadge’s claim Duckworth, begins with the issue to the office. of whether the court has jurisdic- The answer seems to be that tion to decide the controversy. governments, like human While the opinion admits that beings, have frailities [sic] and issues, which are purely political,

44 Georgia Bar Journal are not within the jurisdiction of to protect themselves as they 3. This belief was because of Article the court, the court holds that attempted to exercise the executive V, section I, Paragraph IV of the Georgia Constitution of 1945 where the construction of a consti- powers. In the end, however, the which read in part, “but, if no per- tutional provision is in question the judiciary intervened to quell the son shall have such majority, then judiciary holds exclusive jurisdic- emotion and danger of the situa- from the two persons having the tion. Therefore, the court considers tion and peacefully end the contro- highest number of votes… the General Assembly shall immedi- whether under the Georgia versy. The matter was not over for ately, elect a Governor…” Constitution the General Assembly Thompson and Talmadge, howev- 4. M.L. St. John, 3 Leaders Loom for had the power to elect Herman er. While Georgia settled down in Governorship, ATLANTA CONSTITUTION, Dec. 22, 1946, at 1. Talmadge governor. In finding that the following months under the 5. See Gary Pomerantz, When Georgia the General Assembly acted out- leadership of Gov. Thompson, had Three Governors, ATLANTA side its power, the court states “[i]n Talmadge prepared to make anoth- JOURNAL AND CONSTITUTION, Dec. this State all power and sovereign- er bid for the office he felt entitled 29, 1996, at 4D; Georgia’s Three Governors Controversy, at ty repose in the people.” The to in 1947. Talmadge did not have www.gdnpeachnet.edu/faculty/s- power to elect a governor, there- to wait long. In 1948, Talmadge buchanan/governor.htm (last visit- fore, does not transfer to the legis- defeated Thompson in a special ed Dec. 5, 2000). lature unless the voters fail to give election. 6. James B. Sanders, THE GEORGIA GUBERNATORIAL CONTROVERSY OF a candidate a majority of the vote. 1947 71 (1947) (unpublished thesis, In the current situation, the court Lucian Dervan is a 2002 graduate M.E. Thompson Collection, Special notes, Eugene Talmadge received a of Emory University School of Law Collections and Archives, Robert W. Woodruff Library, Emory majority of the votes cast and, and an associate with King & Spalding. Dervan received his B.A. Univ.) (quoting Arnall v. therefore, regardless of his death, Talmadge, No. 1693 (Henry from Davidson College. The opin- the conditions precedent for leg- County Superior Court Feb. 12, ions expressed herein are solely islative intervention were not pres- 1947)). those of the author and do not 7. Id. at 72 (quoting Bryars et al. v. ent. While Eugene Talmadge pos- necessarily represent the opinions Thompson, No. 15792 (Floyd sessed a majority, his death pre- of King & Spalding. County Superior Court Feb. 7, vented him from being sworn in as 1947)). governor and, therefore, this inabil- 8. Id. at 74 (quoting Fulton National Endnotes Bank of Atlanta v. Talmadge et al., ity of the majority vote recipient to Number 15798 (Henry County assume office created a necessity 1. The other two candidates in the Superior Court Feb. 15, 1947)). for Gov. Arnall to remain in office. Democratic primary were Eurith 9. M.L. St. John, High Court would Rivers, another former Governor, Speed Action in Governor Case, The court concludes its opinion by and Hoke O’Kelly, a disabled war ATLANTA CONSTITUTION, Feb. 11, noting that upon the resignation of veteran. 1947, at 1. Gov. Arnall, Lt. Gov. Thompson 2. See James F. Cook, THE GOVERNORS 10. Thompson v. Talmadge, 201 Ga. had a duty and responsibility to OF GEORGIA 232-33 (Mercer Univ. 867, 872 (Ga. 1947). Press 1995). 11. Id. at 898. assume the office of governor and execute its functions. Thus, Thompson is “entitled to perform all of the duties and exercise all the authority which by the constitution and laws are imposed upon the governor of this state.”11 After the opinion was handed down, Talmadge stepped aside graciously. A dispute over the highest office in the state had involved barricaded doors, fights in the capital, armed militias sur- rounding government buildings and candidates carrying weapons

December 2002 45