35 Ga. App. 404 | Ga. Ct. App. | 1926
James L. Beavers, chief of police of the City of Atlanta, was tried by the police committee of the general council of that municipality upon charges preferred by Edward H. Inman, a member of the committee. The accusation was in four counts, styled and set forth as “specifications” 1, 3, 3, and 4. Count 1 charged in general terms the violation of rule 33 of the police department, which provided that the chief of police “will, as often as possible, pay frequent visits at unusual hours to various portions of the city, that he may be able to know, of his own knowledge, that the officers and men are performing their duties.” Count 3 charged the violation of an ordinance which was in language identical with the above. Count 3 alleged the infraction of rule 39 of the police department, which provided that “no member of the detective or police department will be permitted to work divorce cases, nor will any member of the police department knowingly be allowed to work on cases that will lead up to divorce proceedings.” Count 4 averred that the said Beavers as chief of police had falsely made an affidavit that on account of his poverty he was unable to
The respondent made a motion to disqualify certain members of the committee, demurred generally and specially, and pleaded in abatement, and answered. The motion to disqualify and the demurrers were overruled. The committee tried the issue formed by the plea in abatement and found against the plea. The trial on the merits resulted in the respondent’s conviction of the charges specified as 1, 2, and 4, and in his acquittal of charge number 3. Whereupon the committee ordered his discharge from the police department. By petition for certiorari he excepted to all of the rulings and findings against him. The judge of the superior court set aside the conviction of charge number 4 as being contrary to evidence and without evidence to support it, but affirmed the other rulings and findings of the committee, with the direction that the case be remanded to the committee “to pass such judgment upon their findings as to them should seem meet and proper,” the purpose of which direction was “to allow the committee to reconsider, if it so desires, its judgment, in view of the fact that specification No. 4 is stricken, and, if they see fit, to resentence” the respondent upon specifications 1 and 2, both of the others being then eliminated. The respondent thereupon brought the case to this court for review.
The grounds of the motion to disqualify and the facts touching the plea in abatement are sufficiently indicated in the headnotes. The committee did not err in overruling the motion, nor in finding against the plea, and the superior court committed no error in overruling the certiorari so far as it related to these matters. The special demurrers were to specifications 3 and 4 only, and, in view of the history of the case as to these charges, counsel have not sought any decision by this court in reference to these demurrers. And we will not pass upon the general demurrer. This demurrer having challenged the sufficiency of the accusation as a whole, without reference to any particular count, was properly overruled if any one of the counts alleged cause for the respondent’s dis
This brings us to a consideration of the exceptions to the committee’s findings under specifications 1 and 2. Since these counts are in substance the same, one alleging a violation of a rule of the police department and the other a violation of an ordinance which in language was identical with the rule, and since the convictions on -these two charges will, therefore, stand or fall together, we will not hereafter distinguish between the two regulations, but will deal with the case as though it involved a conviction of violating the rule only, what is said both in this opinion and in the head-notes having reference to' the ordinance as well as to the rule.
The petition for certiorari assigned, among other things, (1) that the committee erred in charging respondent as set forth in specifications 1 and 2, and in convicting him oE the offenses therein alleged, “because same did not constitute any offense, for that -said rule was impossible to be complied with in form or letter;” (2) that the committee erred in so convicting him, because “a com
In our view of the case, it is unnecessary to decide whether all of these exceptions were well taken. To repeat the rule which the respondent was accused of violating, it provides: “He [the chief of police] will, as often as possible, pay frequent visits at unusual hours to various portions of the city, that he may be able to know, of his own knowledge, that the officers and men are performing their duties.” The “officers and men,” of course, are other members of the police department. What is meant by “as often as possible”? What are “frequent visits”? And when is an hour “unusual”? By what standards shall these questions be determined, and who is to determine them? Honest and intelligent men would, no doubt, differ very materially in undertaking to answer them.
It is well settled' that a law which is to be complied with under penalty must “so definitely and certainly define the offense that a person of reasonable understanding can know at the time of the commission of the act that the law is being violated.” “A penal law which is of doubtful construction and in which the act denominated as a crime is described in terms so general and indefinite as to make the question of criminality dependent upon the idiosyncrasies of the men who may happen to constitute the court and jury, and is of such nature that honest and intelligent men are unable to ascertain what particular act it seeks to condemn, is incapable of enforcement, and will be held to be null and void.” Hayes v. State, 11 Ga. App. 371 (2) (75 S. E. 523). We are satisfied that any effort to make a strict and literal application of the regulation here under consideration could result in no other logical conclusion than .that it is too uncertain and indefinite in its terms to be capable of enforcement. See Hale v. State, 21 Ga. App. 658 (94 S. E. 823); Hamilton v. State, 21 Ga. App. 660 (94
The rule is not for the general public or a class, however, but applies only to the incumbent of a particular office, and possibly should be upheld as a legislative guide, in the nature of a declaration of policy, to be observed by the officer, not at his own arbitrary will, to be sure, but in the exercise of a wise discretion, with due regard to all the duties devolving upon him. It is only in this view that the regulation can be regarded as valid; and, under the facts of the present record, we may (and do) assume, without deciding, that it is valid even under this construction. To treat the rule, then, as one to be observed in good faith and in the exercise of a proper discretion, the officer could not be convicted of a violation of it, in the absence of proof that he refused to be guided by it or to exercise any discretion under it, or that such discretion as he may have exercised was affected with negligence, incompetence, or bad faith,, and was thus abused. Compare State ex rel. Coleman v. Trinkle, 70 Kan. 396 (78 Pac. 854). There is no evidence in the record, circumstantial or otherwise, showing, or tending to show, either that the respondent failed or refused to exercise the required discretion, or that he in any way abused it.
The scope of the evidence as to time was, by a ruling of the committee, restricted to a period of two years next preceding the trial. It appears that Atlanta --is a large city, occupying several square miles and having some three hundred and fifty officers on its police force. Each of about twenty of these officers testified that he either had not seen the respondent at all on his beat during the period mentioned, or had seen him but once or twice, or very infrequently. With one or two possible exceptions, those who so testified had beats ranging in size respectively from the space, of several blocks to very much larger areas. None of them, of course, were able to testify that the chief had not made tours of inspection and overlooked them when they had not noticed him. He was not required to make his presence known to the other men on these occasions. All the evidence for the prosecution was negative and of the weakest possible character of that class of evidence. Some twenty-five members of the police department, called as witnesses for the respondent, testified to having seen him at various times on their respective beats. The respondent himself testified
Although in a case like the present this court could not weigh the evidence, it has the power and the duty, under proper exceptions, to order a conviction .set aside, where it is absolutely without evidence to support it. Tibbs v. Atlanta, 125 Ga. 18 (6) (53 S. E. 811); City of Macon v. Anderson, 155 Ga. 607 (117 S. E. 753); Beavers v. Armistead, 156 Ga. 833 (supra). And this is true notwithstanding certain provisions of the city charter to the effect that the board of polioe commissioners (now the police committee) shall establish rules and regulations for the police department on the civil service plan, and that all the officers and employees there
Being of the opinion that the charges were not sustained by the evidence, we omit to adjudicate a further contention of the plaintiff in error that rule 22 has been repealed or superseded by the adoption of later rules and regulations creating the office of assistant chief of police and the offices of captains and sergeants with duties similar to those referred to in the rule in question.
Judgment reversed.