Steele v. State
Decision Date | 02 June 1971 |
Docket Number | Nos. 26460-26463,s. 26460-26463 |
Citation | 227 Ga. 653,182 S.E.2d 475 |
Parties | Jim M. STEELE v. The STATE. A. W. AUSTIN v. The STATE. E. C. KELLEY v. The STATE. J. S. LEWIS v. The STATE. |
Court | Georgia Supreme Court |
Syllabus by the Court
1, 6, 8. The indictments failed to allege offenses against the State law.
(a) Mere authorization of purchase contracts, without allegations that the purchases were consummated, would not constitute violation of provisions of an Act requiring receiving of competitive bids 'before contracting.'
(b) The Act creating the Henry County Board of Commissioners does not require competitive bidding for authorization of services.
(c) The allegations failed to show that the low bids were for items of 'the same quality.'
2. Code § 89-9907 is not unconstitutional on the ground of the vagueness of the expression 'malpractice in office.'
3. Code § 89-9907 is not unconstitutional for lack of notice and hearing, which are provided for in § 89-9908.
4. General laws pertaining to county commissioners need not have uniform operation throughout the State, the subject being covered also by special laws.
5. Code § 89-9907 is not violative of the due process clause of the 14th Amendment to the U.S. Constitution.
7. The indictments were not defective because they included in different counts separate offenses, which were different transactions occurring at different times, arising out of the same type of conduct, but not the same conduct.
These are four separate cases, special presentments in which were returned by a grand jury in Henry County. Defendant Austin is charged with fourteen counts of malpractice in office for various transactions as alleged in the presentment against him. The other three defendants are each charged with twelve counts of malpractice in office for the same conduct as that charged against defendant Austin. The difference in numbers of counts arises by reason of the fact that some of the other three defendants did not participate in all of the transactions as charged against defendant Austin. Identical demurrers were filed in each case and the issues of law presented with respect to each case are identical. All demurrers were overruled and certificates of review voluntarily given by the court.
Each of the defendants is charged with the offense of malpractice in office for conduct allegedly occurring on specified dates. The conduct charged to be malpractice in office is the doing of certain acts on the dates specified without following the provisions of Sections 10 and 12 of Georgia Laws of 1921, page 490 et seq. which, it is alleged, constitutes malpractice in office in violation of Code § 89-9907. In view of the fact that the special presentment against defendant Austin in Case No. 26461 contains charges which are common to all of the defendants in this brief, we will rule on the charges against Austin separately, for a disposition of the various counts with respect to him will dispose of the counts against the other defendants which are common to those against Austin.
Alfred D. Fears, Jackson, Byrd, Groover, & Buford, Denmark Groover, Jr., Macon, for appellants.
Edward E. McGarity, Dist. Atty., McDonough, George J. Hearn, III, William R. Childers, Jr., Monroe, for appellee.
1. Enumerated error 1 raises the questions whether the special presentment as a whole and each count thereof separately, allege an offense against any valid law of the State of Georgia. The latest Act creating the Board of County Commissioners of Henry County, Georgia, is contained in Georgia Laws of 1921, page 490 et seq. Sections 10 and 12 of the Act are pertinent. Section 10 of the Act reads as follows: (Emphasis supplied.) Section 12 of said Act reads as follows: 'Be it further enacted by the authority aforesaid, That the failure of said Board of Commissioners to comply strictly with Sections 10 and 11 of this Act shall constitute malpractice on the part of each Commissioner, and shall be cause for their removal.'
(a) All of the counts charging a law violation charging that the defendant 'authorized' purchases to be made without obtaining three bids, are defective for the reason that the law applicable does not provide that 'authorizing' a contract is equivalent to 'entering into' or 'making' a contract. Code Ann. § 26-601 (Ga.L.1968, pp. 1249, 1269). No consummation of a bilateral agreement following the alleged authorization is alleged. Even if we assume that evidence could be introduced to show final contracts, it would not suffice to correct the defective counts. Oliveira v. State, 45 Ga. 555, 558.
(b) The charges contained in Counts 3a, 6, 7, 10b and 11b in the Austin case (No. 26461), charge that there was authorization for 'services.' The Act creating the Henry County Board of Commissioners contains no provision for receiving 3 bids for services, either separately from or in connection with a job involving both material, etc., plus services where the separate items are itemized and distinguishable. These counts are defective and are subject to the demurrers urged.
(c) Count 13 charges failure to accept the lowest bid for 'a comparable model' and Count 14 charges merely failure to accept the lowest bid. Both of these charges fail to sufficiently and specifically allege that the lowest bids were for goods of 'the same quality,' as is provided in the Act, hence fail to allege an offense against the Act.
2. Code § 89-9907 is not unconstitutional for the reason that the expression 'malpractice in office' is too vague and indefinite to apprise the defendant of the conduct proscribed by said section. Under the full bench decision in Cargile v. State, 194 Ga. 20(2), 20 S.E.2d 416, by which we are bound, the expression 'malpractice in office' in said statute was made sufficiently definite by construing the statute in connection with the laws defining the official's duties together with applicable sections of the Code. In the instant case, this was done by construction in connection with Ga.L.1921, ...
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