Error v. The City Of Augusta

• Decision Date: 31 December 1868
• Citation: 38 Ga. 542
• Parties: WILLIAM T. VASON. plaintiff in error. v. THE CITY OF AUGUSTA, defendant in error.
• Court: Georgia Supreme Court

38 Ga. 542

WILLIAM T. VASON. plaintiff in error. v. THE CITY OF AUGUSTA, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, December Term, 1868.)

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*Nuisance. Jurisdiction. Landlord and Tenant. Certiorari. Before Judge Gibson. Richmond Superior Court, June Term, 1868.

Foster Blodgett was Mayor of the City of Augusta, and acting as Recorder thereof. As Recorder, he issued a summons requiring Vason to answer for an alleged violation of an ordinance of said city. That ordinance was, "no person shall keep on his or her premises any nuisance to the annoyance of his or her neighbors. Any person so annoyed may complain to a member of Council, belonging to his or her ward, who shall require, in writing, an abatement of the nuisance complained of, in twenty-four hours. Should the nuisance not be abated or removed, at the expiration of that time, for every day following the person on whose premises it remains, may be fined in a sum not exceeding twenty dollars. No person shall empty any privy, sink, water-closet or cistern connected therewith or cause the same to be done, at any time, except between the hours of 12 o'clock, P. M., and 4 o'clock A. M., under a similar penalty."

Vason appeared and objected to the jurisdiction of the Court, upon the grounds: 1st. Because, Blodgett being Mayor couldnot issue a summons as Recorder, and was not Recorder because his appointment was illegal. 2d. Because said ordinance covered a crime punishable under the Penal Code of the State, was therefore illegal and the Recorder had no jurisdiction over such crime. 3d. The ordinance was illegal, because it prescribed a punishment for such crime, different from that prescribed by the said Code.

Blodgett overruled the objections and proceeded with the trial. The evidence showed that Vason, as trustee, owned a lot in Augusta, occupied by Butt and others as his tenants and which Butt, or Butt and Brother had occupied for eighteen years, then last past. The nuisance complained of was a privy, on said lot attached to Butt's store, and which was twelve years old. It was offensive. Neighbors had complained of it to the inspector, and he notified Vason of the complaints. A member of Council had also given him *notice in writing. He refused to abate the nuisance, saying it was the duty of the tenant. Vason's counsel insisted upon this also before Blodgett, but he held that Vason was liable for the nuisance, and fined him $20 00. Vason sued out his certiorari. Besides the foregoing facts the answer to the certiorari, showed that in January, 1868, an ordinance was passed by the Mayor and Council, ordaining that "the Mayor of the city be required to act as Recorder, without salary, " and repealing all conflicting ordinances. The conflicting ordinance referred to was as follows: "The Recorder shall be elected annually, on the second Saturday in January. He shall preside in the Recorder's Court and perform such duties as are hereinafter required of him, and shall receive a sal-ary of eight hundred dollars per annum." Subsequent sections gave to this court exclusive jurisdiction over violations of the city ordinances, etc.

Judge Gibson overruled each of the points in the certiorari, and error is assigned accordingly.

C. Sneed, (by Mortgomery) for plaintiff in error.

J. T. Shewmake, for defendant in error.

BROWN, C. J.

1. The 16th section of the Act of the Legislature, passed 15th of February, 1865, declares: "That the City Council of Augusta shall be and they are hereby authorized to elect an officer to be known as 'Recorder, ' in whom they may vest exclusive jurisdiction of all violations of their ordinances, and he shall have power to try and determine the same, " etc.

The 17th section enacts that, "said Recorder shall hold his courts at such times and places as said City Council may prescribe, and they shall direct the mode of summoning or bringing up parties for trial. In the absence of the Recorder, the City Council or Mayor may appoint one of their body to preside in said Recorder's Court."

The 18th section provides, that, "said Recorder shall be elected and hold his office for the term of two years, shall take *an oath before the Mayor well and truly to discharge the duties of his office, " etc.

Under these enactments, we think it was the duty of the City Council to elect a Recorder. The legislature had in view the preservation of order, and the promotion of good government in the city, in conferring the authority upon the City Council to elect said officer, who is to fill the place, in fact, of a Judge of the Criminal Court of the city; and it is not mere matter of option, but it is the duty of the City Council to elect said officer in accordance with the statute, from time to time.

This view is abundantly sustained by authority. In the case, of the King v. the Inhabitants of Derby (Skinner 370) a motion was made to quash the indictment found against the inhabitants for refusing to meet and make a rate to pay the constable's tax, on the ground that the statute was not imperative, but merely "they may meet, " etc. The Court held that may, in the case of a public officer is tantamount to shall, and if he does not do the act required, he shall be punished.

The Statute of 14th Car., 2 Ch. 12, says the church wardens "shall have power and...