183 Ga. 599 | Ga. | 1936
Harry E. Pape filed a petition praying that the writ of mandamus issue against E. W. Butler .as judge of
To the petition the defendant demurred generally and specially, and to the answer of the defendant the plaintiff demurred; and the judgment granting the mandamus was rendered on the pleadings. One ground of the demurrer was predicated upon a failure of the petition to allege compliance with an act of the General Assembly approved March 2, 1933 (Ga. L. 1933, p. 233). The defendant filed an answer to the petition, in which he denied that the petitioner was or is the duly appointed and qualified probation officer, because his tenure of office had expired by reason of the fact that the appointment relied upon by him was not as chief probation officer but as a special assistant probation officer, John A. Davis having, before the appointment of Pape, been appointed as probation officer of Bibb County, and on December 13, 1933, after the appointment of Pape as special assistant probation officer, John A. Davis was discontinued as probation officer without any appointment or reappointment of Pape. Further, defendant alleged that Pape was not probation officer, because he had no fixed term of office, but only a tenure of office which expired with that of the appointing power — the terms of both H. A. Mathews and Malcolm D. Jones having expired, and no appointment or reappointment having been given to Pape. The defendant further charged neglect of duty on the part of the petitioner, with malfeasance and nonfeasance in respect to the office, and with an utter disregard of the principles of honesty and proper conduct, and that he was wilfully refusing to perform the duties of the office in order to devote his time to private business. The petitioner moved to strike the answer, on the grounds that in a mandamus proceeding the defendant could not inquire into the title of the office which the petitioner claimed ; that the act approved March 2, 1933 (Ga. L. 1933,
On February 15, 1936, Judge Malcolm D. Jones passed an order overruling the defendant’s demurrers, and sustaining the petitioner’s demurrers, and made specific findings: First, that the defendant as judge of the city court of Macon had no right to set up an independent system of probation for his court; that the petitioner had supervision over all probationers, and the defendant had no legal right to refuse to turn over to petitioner the probationers from his court. Second, that the alleged misconduct of petitioner constituted no legal defense. Third, that the act approved March 2,-1933 (Ga. L. 1933, p. 233), was unconstitutional, under the ruling in Toole v. Anderson, 177 Ga. 814 (171 S. E. 714). In an amendment to his answer the defendant set forth the appointment by Judge H. A. Mathews, judge of the superior court, of John A. Davis as county probation officer; that Harry E. Pape, by order of Judges H. A. Mathews and Malcolm D. Jones, was appointed as special assistant probation officer for Bibb County; that on December 13, 1933, Judge Malcolm D. Jones passed an order to the effect that John A. Davis was appointed, on July 6, 1918, probation officer, and that it appeared to the court that all of the probation work was being performed by Harry E. Pape by order dated February 3, 1931, and it further appeared to the court that John A. Davis was engaged exclusively as chief probation officer of the juvenile court; and therefore it was ordered that any relationship of John A. Davis as probation officer serving in the superior and city courts was terminated. Therefore it was urged by the defendant that the tenure of office of Harry E. Pape was necessarily terminated at the same time that John A. Davis ceased to occupy the position of chief probation officer.
The act approved August 16, 1913 (Ga. L. 1913, p. 112), declares: “After the passage of this act, the grand jury of any county may recommend to the judge of its superior court that he appoint a county probation officer, and such assistants as may be deemed necessary, who shall have supervision and oversight of all probationers from the several courts of criminal jurisdiction in the county, and it -shall be the duty of the judge to appoint such person or persons as seem best qualified for the duties devolving
The plaintiff in error cites one case from Georgia, City Council of Augusta v. Ramsey, 43 Ga. 140. That decision has never before been cited since its rendition. That was a case where Ramsey sued the City Council of Augusta for his salary as policeman. On April 30, 1867, Major General John Pope, commanding the military district of Georgia, issued an order removing from office the then Mayor and City Council of Augusta, and appointing other members of the city council, who thereupon entered on their duties, and on January 10, 1868, the city council elected the plaintiff for
It is urged by the plaintiff in error that the act approved March 2, 1933 (Ga. L. 1933, p. 233), deprives Pape, the defendant in error, of the right of mandamus, because that act declares that the probation officer " shall not continue without the express approval of the county board of commissioners or other fiscal agent of the county,” which approval had not been given. This act is attacked by Pape as invalid on the ground, among others, that it violates the provision of the constitution (Code, § 2-8401), to the effect that officers created by-the General Assembly for the transaction of county matters shall be uniform throughout the State, and of the same name, jurisdiction, and remedies. The constitution, article 11, section 3, paragraph 1 (Code, § 2-8401), declares: "Whatever tribunal, or officers, may hereafter be created by the General Assembly for the transaction of county matters, shall be uniform throughout the State, and of the same name, jurisdiction, and remedies,” etc. The act of 1933, just cited, attempts to provide ■ probation officers for counties having between 75,000 and 100,000 inhabitants, different from the. provisions relating to probation officers in other counties of Georgia. This Court has held that an act creating a classification of counties for the purpose of levying a school tax on the basis solely of population was void,
Judgment affirmed.