City of Macon v. Bunch

• Decision Date: 11 July 1923
• Docket Number: 3569.
• Citation: 118 S.E. 769,156 Ga. 27
• Parties: CITY OF MACON v. BUNCH.
• Court: Georgia Supreme Court

118 S.E. 769

156 Ga. 27

CITY OF MACON v. BUNCH.

No. 3569.

Supreme Court of Georgia

July 11, 1923

Syllabus by the Court.

Under the provision of Act Aug. 18, 1916 (Acts 1916, p. 779) amending the charter of the city of Macon, to wit, "That no member of the police or fire department of said city shall be dismissed, or suspended, for more than ten days without first having had a trial by the board of civil service commissioners," the dismissal of a city detective of Macon, without trial, and the appointment of another in his stead, on the ground of his indictment, arrest, and incarceration on the charge of murder, was illegal; and he would be entitled to recover his salary from the date of his dismissal until he was discharged after trial, and upon conviction by the board of civil service commissioners.

(a) The effect of said act was to make the tenure of office of a policeman or detective of the police force in the city of Macon run from the date of his appointment until his dismissal for cause after trial and upon conviction by the civil service commissioners.

(b) One regularly elected or appointed to an office created under a city charter, which prescribes the term of office, cannot during the term for which he was elected or appointed, be legally discharged from that office, unless removed in the manner prescribed by law.

(c) The discharge of a policeman or detective of the police force of Macon, in direct contravention of the charter provision of that city requiring a trial before dismissal, is a nullity and the discharged officer would be entitled to the salary of his office, although he performed no duties of his office especially where he stood ready to perform them.

(d) Where a city detective was indicted for murder on said charge, and kept in jail for 31 days to answer this charge, during which time he was prevented from discharging any of his duties as such officer, this was not such abandonment of the office, nor such ceasing to perform its duties as would cause a vacancy in the office, under Civil Code 1910, § 264, par. 7.

(e) Such indictment, arrest, and confinement of such officer on said charge did not create such a necessity as would authorize his removal without trial and the appointment of another in his stead, the act of 1916 making no such exception.

(f) The removal of said officer was not legal because not in conflict with the purpose of the civil service provision of the charter of Macon.

(g) While payment to a de facto officer, in possession of and discharging the duties of an office, of the salary incident thereto is a defense to an action by the rightful officer to recover it, and while it is incumbent upon the de jure officer to have his title to the office established in a direct action, this rule is not applicable: (a) Where no one has been specially appointed to the office in place of the rightful officer; or (b) where it is shown that the full complement of officers has not been appointed; or (c) where it is shown that the government did not in good faith pay the salary to the de facto officer.

Quære, whether the plaintiff would be entitled to recover after the passage of the act of Aug. 16, 1920 (Laws 1920, p. 1142), abolishing the civil service commission, because his office was impliedly abolished by section 5 of that act.

The judgment of the Court of Appeals is affirmed.

Certiorari from Court of Appeals.

Action by J. E. Bunch against the City of Macon. A judgment for defendant was reversed by the Court of Appeals (29 Ga.App. 290, 115 S.E. 40), and defendant brings certiorari. Affirmed.

Harry S. Strozier, H. D. Russell, and Grady Gillon, all of Macon, for plaintiff in error.

C. L. Bartlett and W. A. McClellan, both of Macon, for defendant in error.

HINES J.

This case is in this court upon certiorari to review the judgment of the Court of Appeals. The facts of this controversy and the opinion of the Court of Appeals will be found in Bunch v. City of Macon, 29 Ga.App. 290, 115 S.E. 40.

1. By Act August 17, 1914, § 78 (Acts 1914, pp. 981, 1020), granting a new charter for the city of Macon, a civil service commission was established for that city. By Act August 18, 1916 (Acts 1916, p. 779), the charter was amended, and in said amendment it was provided:

"That no member of the police or fire department of said city shall be dismissed, or suspended, for more than ten days, without first having had a trial by the board of civil service commissioners, which trial shall be public and all witnesses who may be sworn for or against the accused shall be required to testify in his presence. * * * It shall require a majority vote of said civil service commissioners to discharge a fireman or policeman, or to suspend him for more than ten days without pay."

The effect of this latter act was to make the tenure of office of a policeman in said city continue from the date of appointment until dismissed or suspended. No dismissal or suspension could be for more than 10 days without a trial by the board of civil service commissioners. Suspension or dismissal of these officers under this act for a period longer than 10 days was no longer left subject to the discretion of the municipal authorities. They could be dismissed or suspended for a longer period than 10 days only after trial and judgment ousting them. If a policeman was suspended for 10 days and in the meantime he was not tried and suspended or dismissed, his right to the possession of his office was automatically restored to him at the expiration of the 10 days. When suspended or removed longer than 10 days without trial, such suspension or removal would be unlawful, and he would still be a de jure policeman, and legally entitled to the office. The legal right to the office carries with it the right to the salary or emoluments thereof. The salary follows the legal title. Mattox v. Board of Education, 148 Ga. 577, 97 S.E. 532, 5 A.L.R. 568; McCue v. County of Wapello, 56 Iowa 698, 10 N.W. 248, 41 Am.Rep. 134; Harding v. Des Moines, 193 Iowa 885, 188 N.W. 135.

One regularly elected to an office created under a city charter, which prescribes the term of office, cannot, during the term for which he was elected, be legally discharged from that office, unless removed in the manner prescribed by law. Shaw v. Macon, 21 Ga. 280; Baley v. Warrenton, 120 Ga. 365, 47 S.E. 972; Wilson v. Dalton, 135 Ga. 240, 246, 69 S.E. 163. This was the rule under the common law. When declared by statute it has double sanction. So, under a statute which declared that policemen shall hold office for four years and be subject to removal for cause only, a policeman could not be summarily removed by the police board during the term of four years for which he was appointed. State v. Walbridge, 153 Mo. 194, 54 S.W. 447; Hallgren v. Campbell, 82 Mich. 255, 46 N.W. 381, 9 L.R.A. 408, 21 Am.St.Rep. 557. By the act of 1916 this rule is expressly made applicable to policemen in the city of Macon. Under this statute no policeman of the city of Macon can be removed or suspended for more than 10 days except after trial and conviction. If removed without such trial, he is wrongfully removed, and he can recover from the city his salary for the remainder of his term. Andrews v. Portland, 79 Me. 484, 10 A. 458, 10 Am.St.Rep. 280; State v. Walbridge, supra. The discharge of a policeman without cause by one having no authority to oust him, in direct contravention of a charter provision, is a nullity, and he is entitled to the salary, though he performed no duties of the office and engaged in other pursuits, he having been prevented by the marshal from performing the duties of policeman. City of Houston v. Estes, 35 Tex.Civ.App. 99, 79 S.W. 848. The salary of an officer is not dependent upon the discharge by him of the duties of the office. Mattox v. Board of Education, supra; Tucker v. Shoemaker, 149 Ga. 250, 99 S.E. 865. So it is not a good defense to the action of the plaintiff that he did not discharge the duties of his office during the period for which he claims his salary.

We will now briefly consider the errors alleged by counsel for the city to have been committed by the Court of Appeals in its decision in this case. First, it is said "that this case is absolutely controlled by the decision of this court in Mayor, etc., of Brunswick v. Fahm, 60 Ga. 109." We cannot agree with this contention. Under the charter of Brunswick in force at the time the Fahm Case was decided, the clerk of the council of that city was elected by the mayor and aldermen for the term of one year, "unless sooner removed from office." Acts 1872, p. 151. Fahm was elected clerk and treasurer for the year 1875. About September, 1875, he was prosecuted by the mayor for forgery. A true bill for this offense was found against him in November, 1875. When prosecuted, he was imprisoned for some two or three weeks. He was dismissed from office, and another person elected in his stead to fill same. In the spring of 1876 he was acquitted, and he sued the city for the unpaid part of his salary for the year 1875. This court said:

"In the view we all take of the case, it is unnecessary to consider and decide but one question made in the motion for a new trial, and that is that the verdict is contrary to law. Fahm had no right, in law, to recover in the action for his salary, because the mayor and council

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