Heath v. City Of Atlanta

• Decision Date: 27 March 1942
• Docket Number: No. 29272.,29272.
• Parties: HEATH . v. CITY OF ATLANTA et al.
• Court: Georgia Court of Appeals

19 S.E.2d 746

HEATH .

v.CITY OF ATLANTA et al.

No. 29272.

Court of Appeals of Georgia, Division No. 1.

March 27, 1942.

Syllabus by the Court.

1. A trial and conviction of a policeman, pursuant to a city ordinance, on charges of "conduct unbecoming an officer of the police department of the City of Atlanta and with violation of the rule of the police department in the particulars set forth, " etc, is a judicial proceeding from the final judgment in which the writ of certiorari will lie.

2. An application for the writ of certiorari is reviewable notwithstanding it fails to set forth a copy of the ordinance pursuant to which the charges were made, or the substance thereof, or to deny its existence, where the charges are set forth with specification. It may be assumed that the act or acts embraced therein have been made the subject matter of a valid ordinance.

3. Where the participation by the attorney for the city in such trial is prohibited by the City Code unless requested by the commission trying the defendant, and where the record does not show that such request was not made, and no objection was made at the time to the participation, the assignment of error on the ground of such participation is without merit.

4. It is the general rule that the manner in which an accused is brought before a court or commission trying him does not impair its jurisdiction to try him.

5. No proper assignment of error is presented where the city's attorney and others (not constituting any part of the commission trying the accused), after the case had been submitted to the commission in executive session for deliberation and judgment, remained present, and no timely objection was made to such alleged illegal presence.

6. Where proper objections are made to the admission of illegal testimony, and the tribunal makes no ruling, the failure to rule is equivalent to overruling the objections, but under the facts of this case, where the trial was before a quasi judicial tribunal acting in an administrative capacity without a jury, and there was sufficient legal evidence to sustain the finding, the judgment will not be reversed because of the admission of such illegal testimony.

Error from Superior Court, Fulton County; Walter C. Hendrix, Judge.

C. L. Heath was found guilty of certain charges by the Police Commission of the City of Atlanta, and was dismissed from his position on the Police Force of the City of Atlanta, and he brought certiorari to the Superior Court to review the ruling of the Police Commission. To review a judgment dismissing the certiorari, C. L. Heath brings error.

Judgment affirmed.

This case is here on exceptions to a judgment dismissing a certiorari to review a ruling of the police committee of the City of Atlanta. The petition for the writ was sanctioned. The defendant in error answered, which answer was traversed. On the hearing an oral motion was made to strike the traverse and dismiss the certiorari, which motion was granted.

The defendant, a policeman, was charged as follows: "You are hereby charged with conduct unbecoming an officer of the police department of the City of Atlanta and with violation of the rule of said department in the particulars set forth in the affidavits hereto attached and marked 'Exhibit A.' You are hereby noti-fied to be and appear before the police headquarters, at 7:30 o'clock, p." m, on the 30th day of January, 1941, to answer said charges. This the 15th day of January, 1941. M. A. Hornsby, chief of police." Exhibit A is as follows: "I, Ja-nelle Neel, make this statement of my own free will and accord: 'Saturday night, January 4th, 1941, about 11:30 p. m. a boy by the name of Jimmie, that last name I do not remember, came into the Francis Coffee Shop where I work and asked me for a date which I gave him; then he said that he had a boy friend, and wanted me to get a date for this friend. I told him that I had a roommate and might be able to get her. Jimmie and I got into the automobile and drove to Brown's Buffet, where the girl friend works. She accepted the date and Jimmie then said that we would go and see his boy friend and make arrangements for him to go. About 12:00 midnight Jimmie came back; me and my girl friend name Florine Smith, got into the car and drove to police station and picked up Lieutenant C. L. Heath. Lt. Heath got into the car and told Jimmie to drive out to his house on Cooper Street and he would get some whisky, and we drove out on Cooper Street where Lt. Heath got but of the car and went into a two-story house, going up stairs and came back with a quart of Seagrams 5 Crown Whisky. We then drove out to LaBlanc's on Ponce de Leon, where all of us took a drink from this bottle. We then left there and went out some highway to a road house; what highway I do not know. We parked there, a man came out of the road house, and one of the boys stated to the man that they wanted to get a double cabin, and I, Janelle, told them that they were crazy, that I was not going to a cabin. I got out of the car and they told me to get back into the car and they would carry me home. We all got into the car and had been riding about three minutes and I heard a lick pass, I looked back and saw my roommate crying. I told Lt. Heath that he could not do that, that the girl had not done anything to him, and at that time he struck me. We rode down the road a short distance and Jimmie stopped the car and said, 'Let them get out and walk'. I got out of the car and Miss Smith started to get out, and Jimmie said [to] get back in and they would carry us home. After Lt. Heath had struck us both, he told Miss Smith that if she reported this that he would run her out of town; for her to take it and like it. When he struck me in the mouth, caused a tooth to abscess and I had to go to a dentist. He also blacked my eye and the eye of Miss Smith. They then drove us back to 95 Merritts Avenue where we live, and we went up stairs. Lt. Heath was in full uniform.' Signed: Janelle Neel." The second exhibit A was to the same effect. The police commission, including the mayor, tried the defendant, found him guilty of the charges, and dismissed him from the police force.

McElreath, Scott, Duckworth & Riley, of Atlanta, for plaintiff in error.

Savage, Sterne, Murphy & Hooper, of Atlanta, for defendant in error.

GARDNER, Judge (after stating the above facts).

The record presents the following questions: (1) Would a certiorari lie? (2) Was it necessary to set out in the petition the ordinance or the substance of it? (3) Did the presence of an assistant attorney for the city, who conducted the prosecution before the commission, invalidate the proceedings by virtue of an ordinance providing that neither the city attorney nor his assistant shall be competent to engage in such a proceeding unless instructed so to do by the mayor and general council? (4) Was the arraignment and trial of the defendant nugatory because a member of the commission received the report of misconduct of the defendant and instructed a police officer to investigate the same, and such instructed police officer did so investigate and did obtain the affidavits on which the charges were based, on the ground that such member of the commission usurped the duties and powers of the chief of police in instructing the police officer to make such investigation? (5) Should the judgment be reversed on the ground that the police commission, after the evidence closed, went into executive session, excluding defendant and his attorney and retaining the city attorney and other persons in the session? (6) Was it error requiring a reversal for the commission to admit illegal testimony?

1. The record presents a proceeding of a judicial nature. It is, we think, well settled generally and particularly in Georgia that a proceeding in the nature of a judicial one is always subject to review by certiorari. We have examined at length the constitutional provision con-tained in art. 6, § 4, par. 5, Code § 2-3205, and the decisions on this question. We are certain that the proceedings in question were reviewable by the writ of certiorari, under the provision of the charter of the City of Atlanta; see Ga.L.1905, pp. 613, 616, and the allegations of the petition. It is not deemed essential to discuss in detail the many decisions sustaining this view. We cite a number of decisions which we think are controlling: Mayor & Council of Macon v. Shaw, 16 Ga. 172; Asbell v. Mayor, etc., of Brunswick, 80 Ga. 503, 5 S.E. 500; Gill v. Brunswick, 118 Ga. 85, 44 S.E. 830; Tibbs v. Atlanta, 125 Ga. 18, 53 S.E. 811. By a divided bench this question was very thoroughly dealt with in both the majority and minority opinions in Southeastern Greyhound Lines v. Georgia Public Service Commission, 181 Ga. 75, 181 S.E. 834, 102 A.L.R. 517. This court, in Beavers v. Inman, 35 Ga.App. 404, 411, 133 S.E. 275, 278, wherein a similar question was presented, held that certiorari would lie to review the judgment of the police committee: "Even 'where a municipal council had the right to remove a policeman with or without a trial, but proceeded under the latter method, their judgment of removal could be reviewed on certiorari.' City of Atlanta v. Blackman Health Resort, [Inc.], 153 Ga. 499, 509, 113 S.E. 545, citing Asbell v. [Mayor, etc., of] Brunswick, 80 Ga. 503, 5 S.E. 500." See also Beavers v. Armistead, 156 Ga. 833(4a), 120 S.E. 526. So we hold that, to review the rulings on the subject-matter of the instant case, certiorari would lie.

2. The city contends that the petition for the writ of certiorari was fatally defective for it failed to bring up the ordinance or specification of the rules for the violation of which the defendant was tried. This contention is based on the well-recognized principle that the superior court is without authority to take judicial notice of municipal ordinances, and that such ordinances must be specially pleaded. To support this position the city cites Hill v. Atlanta, ...