Shaw v. The Mayor

• Citation: 21 Ga. 280
• Decision Date: 31 January 1857
• Docket Number: No. 61.,61.
• Parties: Harvey W. Shaw, plaintiff in error. vs. The Mayor and Council of the City of Macon, defendant in error.
• Court: Supreme Court of Georgia

21 Ga. 280

Harvey W. Shaw, plaintiff in error. vs. The Mayor and Council of the City of Macon, defendant in error.

No. 61.

Supreme Court of the State of Georgia

JANUARY TERM, 1857.

Assumpsit, in Bibb Superior Court. Tried before Judge Allen, at November Term, 1856.

Harvey W. Shaw was elected Marshal of the city of Macon for the year 1853, by the qualified voters of said city, and entered upon and discharged the duties of said office until June, when he was dismissed from office by the Mayor and Council of said city on the charges of gambling on Sunday, malpractice in office, and perjury. He was paid up to the period of his dismissal, at the rate of one thousand dollars per annum, that being the annual salary of the office, besides fees.

He instituted this action against the Mayor and Council to recover the balance of said salary and the proportion of fees accruing for the remainder of the year.

The defendant pleaded,

1st. The general issue.

2d. That plaintiff was guilty of a violation of his duty as Marshal in being called on before the grand jury of Bibb county to give his testimony respecting the offence of gambling committed in said city, and swearing falsely and committing perjury on that occasion.

3d. That he was guilty of malpractice in office, in not prosecuting for offences of gaming committed.in said city when it was in his power to do so.

4th. That defendant being a municipal corporation, and clothed with judicial powers to try and depose its officers for malpractice in office and neglect of duty, if the dismissal complained of was improper, it was an error of judgment, for which they were not liable to plaintiff. 5th. That the bond executed by plaintiff, upon entering upon the duties of office, recited and provided that he should be removed from office by a majority of the Mayor and Council.

Plaintiff read his declaration and introduced the following testimony:

A. R. Freeman, being sworn, testified that plaintiff was elected by the people in December. 1852, to be principal Marshal of the city of Macon for the year 1853; that he entered upon and discharged the duties of his office until some time in June, 1853, when he was discharged by the Mayor and Council; that the salary of the principal Marshal for the year 1853 was one thousand dollars. Defendant paid plaintiff up to the time he was discharged, having paid him for not quite half the year, but refused to pay him for the balance of the year; that Mr. Shaw offered to perform the duties of Marshal for the balance of the year, but defendant employed another man and paid him.

Wm. Hartley testified that he has been connected with the police department of the city and knows what the fees of, the Marshal are. The perquisites of the office of Marshal in 1853, were worth, independent of the salary, from $2.00 to $2.50 per day.

Plaintiff then introduced, by consent, the decision of the Supreme Court, together with the statement of facts and judgment of the Circuit Court, accompanying and reported in connection with the same, in the case of the Mayor and Council of the city of Macon, plaintiff in error, versus Harvey W. Shaw, defendant, the same being a case of certiorari reported in the 16th vol. of Georgia Reports, and which is referred to by consent of all parties without the necessity of setting out the same herein.

Plaintiff here closed and defendant introduced the following testimony:

1st. A bond, of which the following is a copy, (the execution having been previously proven,) to-wit:

"Georgia, Bibb County.

Know all men by these presents, that we, Harvey W. Shaw principal, and William

Dibble and E. E. Brown securities, are held and firmly bound unto the Mayor and Council of the city of Macon, and their successors in office, in the just and full sum of two thousand dollars, for the true payment of which we jointly and severally bind ourselves, our executors and administrators firmly by these presents, sealed with our seals and dated this 24th day of December, 1852. The condition of the above obligation is such, that whereas the above bound, H. W. Shaw, has been elected principal Marshal of the city of Macon for the political year 1853, subject to be removed from office at any time by a vote of a majority of Council. Now if the said Harvey W. Shaw shall well and faithfully execute and discharge all the duties of his office as now imposed or may be hereafter imposed by the Mayor and Council aforesaid without favor or affection—then this obligation to be null and void, else to remain in full force and virtue.

[Signed,]

HARVEY W. SHAW, [L. S.]

Wm. DIBBLE, [L. S.]

E. E. BROWN, [L. S.]

Signed, sealed and delivered in presence of David Reid, J. P."

Plaintiff objected to the introduction of said bond; the objection was overruled, and plaintiff excepted.

The defendant then introduced and read in evidence to the jury a special presentment for perjury, found by the grand jury of Bibb county against Harvey W. Shaw at the May Term, 1853, of Bibb Superior Court; said presentment alleging, that being sworn at said term of said Court to testify as a witness before said grand jury on a special presentment against John Chain, for playing and betting for money with cards, on the 8th May, 1853, in Bibb county; and that he, assuch witness, falsely swore that he did not see said Chain play for money with cards, and that he saw no money put up; whereas the said grand jury allege the contrary to be the truth. Said presentment against Shaw showed that no plea had been filed thereto and no action had been taken thereon. (The above being the substance of said presentment; the setting out of the same in full is waived.)

Plaintiff's counsel objected to said presentment going in evidence, on the ground that it was irrelevant. The objection was overruled, and plaintiff excepted.

Victor A. Menard, introduced by defendant, who testified that he saw plaintiff play and bet at cards in the city of Macon, on the Sabbath day, whilst plaintiff was Marshal, and that John Chain was playing at the same time, and this in 1853, before the finding of said presentment; that he heard plaintiff say he. had been summoned by the grand jury to appear before them and testify against some of the boys, and that the grand jury would find presentments against them.

This testimony was also objected to by plaintiff as irrelevant and illegal. The objection was overruled, and plaintiff excepted.

Berry Rogers was sworn for defendant, and testified, that he was a member of the grand jury which found the special presentment for perjury against plaintiff; that said presentment was found because plaintiff swore he had not seen John Chain play with cards for money, as alleged in said presentment.

Plaintiff's counsel objected to the testimony of Berry Rogers as irrelevant and illegal. The objection was overruled, and plaintiff excepted.

Plaintiff's counsel requested the Court to charge the jury as follows:

1st. That if plaintiff was elected Marshal by the people of Macon for the year 1853, and discharged the duties of his office until June, 1853, and was ready and willing to perform his duties for the balance of said year, but was prevented by being illegally dismissed by the defendant; plaintiff is entitled to recover.

2d. That the Mayor and Council could only discharge plaintiff from office for malpractice or neglect of duty. And notwithstanding the bond given by plaintiff when he entered upon the duties of his office, reciting that he was "subject to be turned out by a majority of Council at any time;" still the Mayor and Council bad no right to discharge him except for malpractice in office or neglect of duty.

3d. That gambling by the Marshal within the corporate limits of the city, was neither malpractice in office nor neglect of official duty, and defendant had no right to turn plaintiff out for such gambling, even if plaintiff did make and sign the bond introduced in evidence.

4th. That the failure of plaintiff to prosecute persons who gambled in his presence, did not authorize the Mayor and Council to discharge him, unless he was notified so to prosecute by the Mayor or some member of Council.

5th. That the presentment by the grand jury for perjury did not...