The Mayor v. Shaw

• Decision Date: 31 August 1854
• Docket Number: No. 24.,24.
• Citation: 16 Ga. 172
• Parties: The Mayor and Council of Macon, plaintiffs in error. vs. Harvey W. Shaw, defendant.
• Court: Georgia Supreme Court

16 Ga. 172

The Mayor and Council of Macon, plaintiffs in error. vs. Harvey W. Shaw, defendant.

No. 24.

Supreme Court of the State of Georgia

AUGUST TERM, 1854.

Certiorari, in Bibb Superior Court. Decided by Judge Powers, May Term, 1854.

BILL OF EXCEPTIONS.

Georgia—Bibb County:

Be it remembered, that on the fifth day of June, 1854, during the regular term of the Superior Court of said county, His Honor, Abner P. Powers, one of the Judges of the Superior Courts of said State presiding:

The petition of certiorari, of Harvey W. Shaw vs. The Mayor and Council of the City of Macon, came on to be heard; and Counsel for both parties having announced themselves ready, argument was had upon the said petition for certiorari and statement of facts, as agreed upon by Counsel, as follows, to-wit

State of Georgia—Bibb County:

To His Honor. Abner P. Powers, one of the Judges of the Superior Courts:

The petition of Harvey W. Shaw sheweth, that heretofore, to-wit: on the third day of June, in the year 1853, at a regular meeting of the Honorable the Mayor and Council of the City of Macon, held at the Council Chamber in said city, the following Preamble and Resolutions were agreed and passed by said body, to-wit:

Whereas, It has been represented to the Mayor and Council that indictments have been returned by the Grand Jury, at the last term of Bibb Superior Court, against Harvey W. Shaw, Chief Marshal, and Henry J. Cooper, Deputy Marshal of the city, for gambling; and whereas, Council have reason to believe that said offence, if committed, was committed within the corporate limits of the city:

Resolved, That Council will proceed, at the next regular meeting of the Council Chamber, to-wit: on Friday next, the 10th of June, 1853, at four o'clock in the afternoon, to investigate the said charges, and to put said Harvey W. Shaw and said Henry J. Cooper, on their trial for the same.

Resolved, That the Mayor is requested to have the propernotices served upon said Harvey W. Shaw and said Henry J. Cooper, requiring each of them to appear, then and there, to answer said charge.

Resolved, That the Mayor is requested to have the witnesses who appeared before the Grand Jury subpoenaed, to be in attendance at said time and place.

And petitioner further showeth, that in pursuance of said resolution, your petitioner, on the 7th day of said month, was served with a notice, of which the following is a copy:

Georgia—Bibb County:

City of Macon to Harvey W. Shaw, Marshal:

You are hereby required, personally, to be and appear at the Council Chamber in said city, at 4 o'clock P. M. on Friday next, to answer to charges preferred against you.

A. K. FREEMAN, c. c.

June 1th, 1853.

And petitioner further showeth, that afterwards, to-wit: on the 10th day of said month, petitioner appeared, in obedience to said summons and notice, at the time and place therein mentioned, before the said Council then in session; when, on motion of Alderman Holt, a member of Council, the regular business was suspended until the investigation of the charges against the Chief Marshal was disposed of.

And on motion, it was agreed by Council that Messrs. Poe, Nisbet & Poe, as Counsel for said corporation, and Messrs. Lanier & Anderson, Robert A. Smith, Hall & Carey, and Stubbs & Hill, as counsel for said Harvey W. Shaw, be permitted to occupy seats within the bar, to conduct the prosecution and defense of said case.

Whereupon, the said Shaw was asked if he was ready to answer the charges preferred against him, when petitioner, by his Counsel, answered ready. The prosecution announced ready, and was proceeding to swear and examine certain witnesses, hereinafter mentioned, when Counsel for defendant, your petitioner, objected to any evidence being given to prove the charge preferred, on the ground that the said Mayor and Council had no jurisdiction to try your petitioner for gambling; that such offences were cognizable and triable, alone, in the Superior Courts of the State.

Counsel for the prosecution then verbally announced that it was not proposed to try defendant, your petitioner, for an offence against the State Laws, but for a violation, by gambling, (he being the Chief Marshal of the city,) of the charter and ordinances of the City of Macon; and consequently, for malpractice in office and neglect of duty.

At this stage of the trial, for the purpose or discussing said question, whether gambling within the corporate limits of the City of Macon, by the Chief Marshal of the said, city, during his term of office, amounted to malpractice in office, and neglect of duty, under the charter and ordinances of said city, defendant, by his Counsel, for the sake of the argument, admitted the fact of gambling within the city limits, during his term of office as Chief Marshal; and after argument had, it was decided and adjudged that gambling by the Chief Marshal of the city, within the corporate limits of said city, during his term of office, did amount to malpractice in office, and neglect of duty.

Counsel for defendant then objected to be tried upon the charges thus preferred, upon the following grounds:

1st. Because defendant was elected by the people, and not by the City Council: he ought, therefore, to be tried in solemn form, and not dealt with summarily; that he had no notice of the charges thus preferred, and therefore, no opportunity of defense; and the said charges were wholly different to the charge to which he had announced himself ready to answer, as set forth in the resolution specifying charges; and that he was not charged or notified in writing, then or previously, that he would be put on his trial for malpractice in office, or neglect of duty.

2d. Because he had no notice of any distinct offence or offences of gaming; nor was he called on to answer the chargeof any distinct case or cases—when and where done, or what game or games played, but to answer the charge of gaming, generally.

3d. Because gambling by the Marshal, within the city limits, it not in any sense, a violation of the city charter or ordinances, but a violation of the Penal Code, and cognizable and triable alone in and by the Superior Court.

4th. Because gambling by the Marshal, within the city limits, is neither, in any sense, malpractice in office nor neglect of duty, according to the charter and ordinances.

5th. Because there is nothing contained in the charter, nor in the ordinances, nor have instructions, of any kind, ever been given to said Shaw, upon assuming the duties of his office or since, notifying him that he would be held amenable to Council, in any shape, for gambling.

6th. Because, under the city charter and ordinances, the Marshal, being elected by the people, can only be tried or dismissed by the Council, on the grounds, viz.: malpractice in office or neglect of duty—and that gambling is neither the one nor the other.

All which objections, the Mayor and Council over-ruled, and proceeded with the trial.

Counsel for the prosecution swore the following named witnesses, to-wit: John Chain, Eliphalet E. Brown and Victor Menard, and proposed to introduce the said John Chain and Eliphalet E. Brown, who had not been before the Grand Jury as a witness against said Shaw or Cooper. Counsel for defendant objected, on the grounds that the resolution of Council, calling upon said Shaw to answer the charge of gambling, having provided that certain witnesses, who had testified befor the Grand Jury, should be subpoenaed to appear before the Council to testify against Shaw; and no provision having been made for the subpoena of other witnesses, said Shaw had a right to expect that no other would be produced; and the same tended to entrap him and embarrass his defense.

The objection to the witnesses was over-ruled, and the fol-lowing is the testimony—and the only testimony, of any kind —introduced by the prosecution:

Victor Menard, John Chain and Eliphalet E. Brown, being duly sworn, all testified that they saw Harvey W. Shaw, the principal Marshal of the City of Macon, gambling for money on the Sabbath, being the Sabbath before the May Term of Bibb Superior Court, 1853, within the corporation limits of the City of Macon, and during his present term of office as principal Marshal.

After closing the testimony, Counsel for the defendant then moved his discharge, on the following grounds:

1st. Because no malpractice in office, and no neglect of duty, had been proven.

2d. Because no notice to the Marshal, on the part of the Mayor or any member of the Council, although they knew of such offence within the limits of the city, to prosecute for the offence of gambling, has been or could be proven to have been given; and because such notice is necessary, under the ordinances, before the Marshal is liable for the neglect of duty.

The question was then put, whether Harvey W. Shaw, principal Marshal of the City of Macon, had been guilty of the offence of gambling, within the corporate limits of the City of Macon, during his term of office—which was unanimously decided in the affirmative.

It having been decided as above stated, that gambling, within the corporate limits, by the principal Marshal, amounted to malpractice in office and neglect of duty, under the city charter and ordinances, the Council retired to deliberate what action they should take in the premises. Whilst discussing the questions made, a resolution was moved and agreed to by said Mayor and Council, restricting all debate, on the part of Counsel for the prosecution and defence, to one speech on each side, on any single point that might be made, or might arise, in thesubsequent stages of the said trial; to which, Counsel for defendant excepted, on the ground that the same crippled the defendant\'s defence.

The Mayor and Council then retired in secret council, with closed doors, in the room of the Clerk of Council, and after remaining out for the space of one half hour returned to the Council Chamber—when his Honor then read the following...