City of Macon v. Anderson
| Decision Date | 18 May 1923 |
| Docket Number | 3447. |
| Citation | 117 S.E. 753,155 Ga. 607 |
| Parties | CITY OF MACON ET AL. v. ANDERSON. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The city council of Macon, in trying charges preferred against a member of the board of water commissioners and of the Bacon Field Park Commission, instituted for the removal of such member under section 77 of the charter of Macon (Acts 1914 pp. 979, 1020), exercises judicial powers, or quasi judicial powers, and is a special judicatory, to which a writ of prohibition will lie in a proper case.
The writ of prohibition is an available remedy only where no other legal remedy or relief is given, and where a complete remedy exists by appeal, writ of error, writ of review certiorari, injunction, mandamus, or otherwise, this suit should be denied.
(a) The office of the "writ of prohibition" in this state is to restrain subordinate courts and inferior judicial tribunals from exceeding their jurisdiction, so that each tribunal shall confine itself to the exercise of those powers with which, under the Constitution and laws of this state, it has been entrusted; and where such subordinate courts and inferior tribunals are clearly without jurisdiction of the subject-matters with which they are dealing, or act in excess of their jurisdiction, the writ of prohibition is an appropriate remedy to restrain them; the remedy by certiorari not being as full and complete as the writ of prohibition and the grant or refusal of the writ of prohibition in such cases being, at most, a matter of discretion.
That portion of section 77 of the charter of Macon which is set out in full in the first division of the opinion in this case is not unconstitutional, in that it violates the due process clauses of the state and federal Constitutions, because it does not provide for notice and an opportunity to be heard when charges are preferred thereunder against a member of a city board; it being a grant of power by the Legislature to a municipality, which need not be accompanied by provision for due process, but the Legislature can leave to the city council the enactment of an ordinance or resolution providing for notice to the accused and opportunity to him to be heard.
The question of the constitutionality of the provision of a legislative act is not raised by a petition in which no particular clause or part of the Constitution is designated and in such a case no question for decision by this court is presented.
Under the above provision of section 77 of the charter of Macon, which provides for the removal of a member of a city board for "continued neglect of duty or other conduct unbecoming the station of such member," a member can be removed for conduct which renders him infamous and unfit to discharge the functions of his office, although such conduct has no immediate relation to the discharge of his duties as such official.
The court erred in not sustaining the demurrer to the plaintiff's petition, and in granting the writ of prohibition.
Error from Superior Court, Bibb County; H. A. Mathews, Judge.
Petition by J. L. Anderson for a writ of prohibition against the City of Macon and others. Judgment for plaintiff, and defendants bring error. Reversed.
J. L. Anderson filed his petition for the grant of the writ of prohibition against the city of Macon and its mayor and aldermen, and made this case: He was duly elected a member of the board of water commissioners of said city by the voters thereof, on September 25, 1919, and qualified as such on October 1, 1919. He was elected for a term of six years, and his office expires on October 1, 1925. In the charter of the city is this provision:
"Any member of the boards herein provided for may be removed from office by the mayor of said city, after a public trial and conviction by the council upon written charges preferred, for continued neglect of duty or other conduct unbecoming the station of such member, to be judged of by said council."
On February 17, 1920, he was duly appointed a member of the Bacon Field Park Commission by the then mayor and council of said city, which said appointment is for life, or for the existence of said commission. Said commission was in fact created under the last will of the late Hon. A. O. Bacon, in which he gave certain of his lands to said city to be used as a park; and in order to superintend the same, he directed that a commission be appointed of seven members, after which such commission should be the judge of its membership and fill any vacancies occurring thereon. Subsequently to appointment of the original members, neither the city nor any official thereof has any jurisdiction whatever over such commission or any member thereof, and neither said city nor the mayor and aldermen thereof have any power to prefer charges against him as a member of such commission or remove him therefrom, either for or without cause. The above provision of the charter of Macon has no application to any member of said Bacon Field Park Commission, and, in so far as the subject-matter of his petition is concerned, relates only to him as a member of the board of water commissioners. He was a member of a labor organization, known as Central City Lodge, No. 8, of the International Association of Machinists, and as such he held the office of financial secretary. On June 20, 1922, at a regular meeting of the mayor and aldermen of said city, the mayor preferred certain charges against him with said council. In substance these charges were that Anderson, while financial secretary of the above lodge, embezzled its funds, amounting to $2,230.66, for which offense he was arrested on a warrant issued March 7, 1922, which is now pending in the courts of Bibb county, and he is now out on bond, and that said misappropriation of funds constituted on his part conduct unbecoming his station as a member of the board of water commissioners and subjected him to being impeached and removed therefrom. Thereupon the mayor and aldermen passed a resolution reciting the above charges, and providing that Anderson be given a public trial on said charges in the council chamber of said city on July 11, 1922, "with full opportunity * * * to appear and be heard, to cross- examine the witness against him, to present evidence, * * * to be represented by counsel, and to do all things necessary in his defense which may legally be done." This resolution further provided that a copy of said charge be attached to a summons commanding Anderson to appear and answer said charge at the time and place aforesaid, and that he be furnished with a copy of the resolution. It further provided for the issuance of subp nas to witnesses, commanding them to be and appear at said trial, and directed that they should be served by a police officer. It further provided that:
"All competent testimony offered by both sides shall be fully heard, and said charges fully sifted and investigated, with the object of ascertaining whether or not they are true."
Since his election and qualification as member of said board of water commissioners, petitioner has honorably, faithfully, and conscientiously discharged his duties as such. It is the purpose of the city and its mayor and aldermen to hear and determine the charges preferred on July 11, 1922, and to this end they have issued subp nas to witnesses and prepared for said hearing. The city and its mayor and aldermen are acting in excess of their powers, and petitioner has had no opportunity to object to their jurisdiction over such charges. He has no legal remedy or relief, save his appeal to the superior court, to prevent said defendants from hearing said charges, and he has no other lawful remedy to prevent their exceeding their jurisdiction. The action of defendants is illegal and in excess of their jurisdiction and powers: (a) Because they have no jurisdiction to hear and determine said charges; (b) because no charges are preferred for continued neglect of duty as a member of said board; (c) because the charter of said city does not contemplate that the defendants have authority to try him for acts not directly connected with said office of water commissioner; (d) because said charges show that they are preferred under said portion of the city charter, to wit, "or other conduct unbecoming the station of such member," the same being unconstitutional and void, because it is too vague and indefinite to justify charges of a criminal or quasi criminal nature; (e) because said provision of the charter violates the due process clause of the Fourteenth Amendment to the Constitution of the United States; (f) because it violates the same clause of the state Constitution; (g) because it violates the Sixth Amendment to the Constitution of the United States; and (h) because it violates article 1, § 1, par. 5, of the state Constitution. He prayed for the writ of prohibition, commanding the defendants to desist from trying said charges against him.
By an amendment petitioner alleged that the clause, "or other conduct unbecoming the station of such member," only refers to matters of the same kind as that "for continued neglect of duty," and said charge of larceny after trust has no relation to that of continued neglect of duty. He further alleged that the mayor and aldermen of said city are prejudiced and biased against him.
The defendants demurred to the petition, on the grounds that (1) it sets out no cause of action; (2) it discloses no ground for equitable relief; (3) it discloses no ground for the grant of injunction; (4) it discloses no ground for the issuance of the writ of prohibition; and (5) petitioner has an adequate remedy at law for the matters of which he complains. The trial judge overruled the demurrer, and granted the writ of prohibition. Error is...
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