Cargile v. State

• Citation: 21 S.E.2d 326,67 Ga.App. 610
• Decision Date: 15 July 1942
• Docket Number: 29323,29324.
• Parties: CARGILE v. STATE. STEPHENS v. STATE.
• Court: United States Court of Appeals (Georgia)

21 S.E.2d 326

67 Ga.App. 610

CARGILE v. STATE.

STEPHENS v. STATE.

Nos. 29323, 29324.

Court of Appeals of Georgia, Division No. 1.

July 15, 1942

F. C Cargile and E. L. Stephens were separately indicted for the offense of malpractice in office. Each indictment contained five counts. The defendants were tried separately. In each case demurrers, general and special, were interposed to each count of the indictment. All of the demurrers were overruled except the special demurrer attacking the allegation in each count that the specified acts of the defendant were conduct "unbecoming the character of an upright county commissioner," and the special demurrer interposed to the charge that the defendant voted to pay and did pay the county police. Those special demurrers were sustained. Pendente lite exceptions were filed to the judgment overruling the other demurrers. Upon the trials, each defendant was found guilty on counts 1, 2, and 5 of the indictment, and not guilty on counts 3 and 4. Each defendant was fined $25 and removed from his office of county commissioner. Each defendant filed a motion for new trial which was overruled, and that judgment is assigned as error in each bill of exceptions.

W. E Armistead, of Rex, and Edwin S. Kemp, of Jonesboro, for plaintiff in error.

Roy Leathers, Sol. Gen., of Decatur, for defendant in error.

BROYLES Chief Judge (after stating the foregoing facts).

The two indictments, the demurrers interposed thereto, the evidence in the two cases, and the grounds of the motions for new trial, are substantially identical, any differences being inconsequential to the determination of the controlling issues in these cases. Since the defendants were found not guilty on counts 3 and 4, those counts and the demurrers thereto will not be considered. In each indictment the accused was charged with the offense "malpractice." However, the facts stated in the indictments clearly show that the defendants were charged with the offense of malpractice in office; and it is well established by numerous decisions of the Supreme Court and this court that the name of a crime given in an indictment does not determine the offense alleged to have been committed by the accused, but the offense is determined by the facts stated in the indictment. Moreover, the indictments were not demurred to on this ground. The indictments were drawn under the Code, § 89-9907, which reads as follows: "Malpractice, oppression, and tyrannical partiality.--Any ordinary, member of any board of commissioners, county judge, or justice of the peace, who shall be charged with malpractice in office, or with using oppression or tyrannical partiality, or with wilfully refusing or failing to preside in or hold his court at the regular terms thereof or when it is his duty under the law to do so, or with using any other means to delay or avoid the due course or proceeding of law, or with any other conduct unbecoming the character of an upright magistrate, or who shall wilfully and knowingly demand more cost than he is entitled to by law, in the administration and under color of his office, shall be punished as for a misdemeanor and shall be removed from office."

Count 1 of each indictment charged that the accused, in Clayton County, Georgia, on November 20, 1939, then and there being a member of the board of commissioners of said county, and while acting in his official capacity and in the administration and under the color of his office, did pay to E. L. Adamson, the sheriff of the county, certain large sums of money out of the funds of the county (the exact sums being specifically set forth in the indictment). The count charged that said payments were illegal and contrary to law because the sheriff was then and there on the fee system, and that said payments to him were in addition to his lawful fees, and that the unlawful acts of the accused were means to delay and avoid the due course and proceedings of the law, and were tyrannical partiality in the administration and under color of his office. Count 2 of each indictment (formal parts omitted) charged that the accused did contract with the sheriff to pay him, and did pay him, other and greater fees than were allowable by law for collecting tax executions. (The amount of the fees collected and the number of the various tax receipts were set forth in detail in the indictment.) Count 5 of each indictment (formal parts omitted) charged that the accused did contract with H. Grady Moore, a commissioner of Clayton County, acting in his individual capacity as the administrator of the estate of his deceased father, for work to be done and supplies to be furnished for Clayton County, and that said work and supplies were not let at public outcry to the best bidder as required by law. (The work and supplies were set forth in detail in the indictment.) The count further charged that the accused paid said Moore out of the funds of Clayton County for such work and supplies and set forth in detail the amounts so paid. All three of the counts charged that the alleged unlawful acts of the accused were committed in the administration and under color of his office as a county commissioner; were done to delay the due course and proceedings of the law, and amounted to tyrannical partiality.

The general demurrers in each case to counts 1 and 2 are substantially identical. They allege that malpractice is not a crime under the laws of this State; that paying salaries to the sheriff is not a crime, said contract to so pay being merely void, and for which a civil remedy is provided; that the allegations of counts 1 and 2 do not charge any offense under the laws of this State. Counts 1 and 2 of the indictment are not subject to any of the general demurrers interposed. In answer to a question certified by this court in this case to the Supreme Court, that court ruled as follows: "Malpractice in office relating to county commissioners, as used in the Code, § 89-9907, means a wrongful or unjust doing of an act which the doer has no right to do, or failure to do what the law makes it his duty to do, with evil intent or motive or due to culpable neglect. The statute making malpractice in office a penal offense must be construed in connection with the laws defining the official's duties together with the Code, §§ 26-201, 26-404, 27-2509, and 89-9908. When thus construed, the statute is made sufficiently definite to meet the requirements of a valid penal law." For the full opinion of the Supreme Court see Cargile v. State, 194 Ga. 20, 20 S.E.2d 416, 417. The acts of the defendants in paying the sheriff a salary and fees in addition to his lawful fees, as charged in counts 1 and 2 of each indictment, were clearly illegal and unlawful and amounted to malpractice in office. "Any public officer who shall charge or take fees not allowed by law *** shall, on conviction or proof thereof, be dismissed from office." Code, § 89-702. It follows that any county commissioner who knowingly and wilfully assists another public officer in charging and receiving unlawful fees is guilty of malpractice in office and of violating the provisions of Code,§ 89-9907.

In each case the general demurrers to count 5 of the indictment are substantially the same. Some of them are similar to those interposed to counts 1 and 2. Another demurrer alleges that the count attempts to charge the accused with an offense under the general laws of this State, to which he is not subject or acting under, by reason of the fact that he is subject to and answerable only under a special local law which takes precedence over the general law under which this indictment is brought, for the reason that the general law does not require that this type of contract, as alleged, be let at public outcry to the highest bidder.

This court certified to the Supreme Court the following question in this case: "Where A, a county commissioner of Clayton County, Georgia, acting as such commissioner and under color of his office, unlawfully and illegally contracts with B another county commissioner of said county, or with a person related to B, for work to be done and supplies to be furnished said county, without letting out said work and said supplies at public outcry to the best bidder, such contract being in violation of the provisions of section 12 of the act creating the Board of Commissioners of Clayton County, Ga.Laws 1910, pp. 256, 261 but said act not providing any punishment for the violation of any of its provisions, and said illegal contracting not having been specifically declared a criminal offense by any statute of this State, is A, because of said illegal contracting, subject to indictment under the Code, § 89-9907, for the offense of malpractice in office?" The Supreme Court answered the question in the affirmative. In that case the court further said that since the Code,§ 89-9907, makes malpractice in office "a criminal offense punishable by the infliction of the penalties therein prescribed, it must...