155 Ga. 607 | Ga. | 1923
Lead Opinion
(After stating the foregoing facts.)
It is insisted by counsel for the City of Macon that the writ of prohibition must be addressed to a court; and that the’ council of this city, in hearing and deciding charges preferred for the removal of a member of its board of water commissioners, do not constitute such a judicatory as will authorize the grant of the writ of prohibition to restrain this action, if a proper ease for issuing such writ is otherwise made. In this contention we can not concur. The writ of prohibition lies “to arrest illegal proceedings by any court officer, where no other legal remedy or relief is given.” Civil Code (1910), § 5458. It may be putting it somewhat too strong to say that it “issues only to prohibit action by an inferior court” (Seymour v. Almand, 75 Ga. 112); but for the purposes of this case we can accept this statement as
The provision of the charter of Macon under which the aider-men thereof were proceeding in this matter is in part as follows: “ Any member of the boards herein provided for may be removed from office by the mayor of said city, after a public trial and conviction by the council upon written charges preferred, for continued neglect of duty or other conduct unbecoming the station of such member, to be judged of by said council. The vote of two thirds of all the aldermen elected shall be necessary to such conviction and removal.” Acts 1914, pp. 979, 1020, § 77. Action under this provision is-clearly judicial, and provides for public trial by the city council. Before a member of any of the boards of said city can be removed, there must be a judgment of conviction. It prescribes the punishment when a member is convicted. Thus the city council, in trying charges preferred against a member of-one of its boards, becomes a judicial tribunal to which the writ of prohibition lies in a proper case. If the action sought to be-prohibited is judicial in its nature, it may be prevented by the writ of prohibition, though the tribunal or person to whom the writ is addressed is not in name a court or judge. Speed v. Common Council of Detroit, 98 Mich. 360 (57 N. W. 406, 22 L. R. A. 842, 39 Am. St. R. 555); Williamson v. Mingo
The writ of prohibition is an available remedy only “ where no other legal remedy or relief is given.” Civil Code (1910), § 5458., If a complete remedy exists by appeal, writ of error, writ of review, certiorari, injunction, mandamus or otherwise, this writ should be denied. Ex parte Warmouth, 17 Wall. (U. S.) 64 (21 L. ed. 543); In re Huguley Mfg. Co., 184 U. S. 297 (22 Sup. Ct. 455, 46 L. ed. 549); Ex parte Oklahoma, 220 U. S. 191 (31 Sup. Ct. 426, 55 L. ed. 431); Hudson v. Preston, 134 Ga. 222 (67 S. E. 800); Cunningham v. Rachaels, 146 Ga. 682 (92 S. E. 208). So where certiorari is an available remedy, this writ will not issue. Heaton v. Hooper, 134 Ga. 577 (68 S. E. 297). The remedy by certiorari is exceeding broad and far-reaching. Certiorari is a constitutional writ, the judges of the superior court being expressly clothed, by the constitution of this State, with “power to correct errors in inferior judicatories.” Civil Code (1910), § 6514. By statute “the writ of certiorari will lie for the correction of errors committed by justices of the peace, corporation courts or councils, or any inferior judicatory, or any person exercising judicial powers.” § 5180. Here is express constitutional and statutory authoritj’- “for the correction of errors committed by . • . corporation courts or councils, or any inferior judicatory or any person exercising judicial powers.” It may seem at first blush that the writ of- certiorari furnishes a remedy full and comprehensive enough to correct all errors committed by justices of the peace, municipal courts or councils, any inferior judicatory, or any person exercising judicial powers, whether within or without the limits of their respective lawful jurisdictions; and that for this reason the writ of prohibition will lie to these tribunals, if at all, only .in rare and isolated cases. But, if this were so, the writ of prohibition, which," like certiorari,
A • brief review of the cases decided by this court upon this subject will show that the writ of prohibition lies in all eases where there is láck of jurisdiction of the subject-matter, or where the act complained of was in excess of the jurisdiction of the court or tribunal.. In South Carolina R. Co. v. Ells, 40 Ga. 87, it was held that" justices of the peace, upon the opinion of twelve freeholders of the county, had no jurisdiction to abate a nuisance in a city; and that a writ of prohibition was the proper remedy to restrain them. In Doughty v. Walker, 54 Ga. 595, it was held that the office of the writ of prohibition in this State is to restrain subordinate courts and inferior judicial tribunals' from exceeding their jurisdiction, so that each tribunal shall confine itself to the exercise of those poweis with which, under the constitution and laws of the State, it has been entrusted. In that case the writ issued to restrain a justice of'the peace from setting aside a judgment rendered by him, on the ground that he had no authority to set it aside; and’it was ruled that the writ of prohibition was the appropriate remedy to restrain him. This ruling was followed in Mills v. Bell, 136 Ga. 687 (71 S. E. 1120). Prohibition is the proper remedy to prevent 'an' Ordinary from proJ ceeding further, pending an appeal from that court to the superior court. Fite v. Black, 85 Ga. 413 (11 S. E. 782). This decision was based upon the fact that the ordinary had lost jurisdiction over the case by its appeal to the superior court. It is true that this court, in rendering the decision in that case, said: ‘ “ These executors, pending their appeals in the superior court, could resort to no remedy save this writ, to prevent the ordinary from treating his own judgment as final and going on to execute the same as he was proceeding to do;” but the true basis of the puling in that case was lack of jurisdiction over the subject-matter after the appeal had been taken to the superior court.
“ The refusal to surrender to an arresting officer, upon a warrant lawfully issued, one accused of crime can not be déalt with as a contempt of court by a justice of the peace who has done noth
From the above cases, it will appear that this court has decided that whenever an inferior tribunal presumes to act when it has no jurisdiction of the subject-matter of the proceeding, or if it has jurisdiction thereof but exceeds its legitimate powers in the particular matter, the writ of prohibition will lie, and the remedy by certiorari is not adequate. On this subject se§ 33 Cyc. 605 (3). In the cases where this court held that certiorari was an adequate remedy, the tribunals I sought- to be restrained by this writ had jurisdiction of the subject-matter involved. There is nothing to the contrary in Hart v. Taylor, 61 Ga. 156, in which this court said: “All that we rule now is, that the writ of prohibition, which ought never to be granted except upon a ‘strong case clearly made out, of want of jurisdiction in the court sought to be pro
The plaintiff attacks the constitutionality of the above provision of the charter of Macon, under which the city council was proceeding to try him upon-the charges preferred. One ground of this attack is that said provision violates the due-process clauses of the State and Federal constitutions, because it does not provide for notice to those to be triéd. thereunder, and does not give to such an opportunity to be' heard. The trial judge took this view, and held this provision of the city charter unconstitutional. In so holding, we think he erred. It is true that notice and an opportunity to be heard are fundamental requirements of due process. Riley v. Wright, 151 Ga. 609 (107 S. E. 857); Arthur v. State, 146 Ga. 827 (92 S. E. 637); Mott v. State Board of Optometry, 148 Ga. 55 (95 S. E. 867); City of Jackson v. Kinard, 154 Ga. 692 (115 S. E. 69). But this provision of the city charter does not -violate these clauses of the State and Federal constitutions. It contains a grant of power, which need not be accompanied with provision for due process. The legislature can leave to the city council the enactment of an ordinance providing for notice to the accused .and an- opportunity to be heard; and such an ordinance will-supply due process. City of Sandersville v. Bell, 146 Ga. 737 (92 S. E. 218); City of Jackson v. Kinard, supra, So it is unnecessary to determine whether this provision of the city charter ex vi termini does not provide for notice and an opportunity to be heard. On this question see 2 McQuillin, Mun. Cor. 1210, § 552.
The plaintiff further contends that the clause in said provision, to wit, “ or other -conduct unbecoming the station of such
The vital question in this case is this: Have the city council of Macon the jurisdiction and authority to try the plaintiff upon the charge preferred against him? The charge against him is-embezzlement or larceny of the funds, not of the city, but of a lodge of which-he was secretary, during his-term of office as a member of the-board of water commissioners and a member of the Bacon Field Park Commission. The answfer to the above question depends upon the proper construction of the language of the provision of the city charter which we have'been1 considering, and which is set out above. A member of said boards, under said provision, can only be' removed “ for continued neglect of duty, or other conduct unbecoming- the station of such member.” The plaintiff' contends that he can be removed only for unbecoming conduct in discharging the functions of his office. The trial judge was of the opinion that the unbecoming conduct referred to in- this clause of the city charter was official misconduct, and not the conduct of the member in unofficial matters. There is force in this contention; but we do not believe that this is- the proper construction of- this language, which is broad enough to cover both personal and official conduct unbecoming the station of a member of these boards. The judge cites Mayor &c. of Macon v. Shaw, 16 Ga. 172, to support the plaintiff’s contention. In that case the proceeding was to remove the city marshal for gambling; and the proceeding was instituted under an amendment to the charter of Macon, which authorized the mayor and city council to dismiss the city marshal- for malpractice in office or neglect of duty. This court held that gambling was neither ’ malpractice in office nor neglect of duty; and that, for this reason, the then city marshal of Macon could not be removed under the above amendment to the charter of that city. Hnder a statute fixing the term of a police
So we reach the conclusion that a member of any board of the City of Macon can be removed from office upon his conviction, after public trial, by the city council for embezzlement o,r larceny after trust, although such offense has no immediate relation to the duties of his office, the same making him infamous and unfit to execute or discharge public functions. Accordingly the court below erred in not sustaining the demurrer to the petition of- the plaintiff, and in granting the writ of prohibition restraining the city council from trying plaintiff on the charges preferred.
Judgment reversed.
Concurrence Opinion
concurring. I agree to the result, but do not concur in the language used in the third headnote.
