156 Ga. 27 | Ga. | 1923
This case, is in this court upon certiorari to review the judgment of the Court of Appeals. The facts of this controversy and the opinion.of the Court of Appeals will be found in Bunch v. City of Macon, 29 Ga. App. 290 (115 S. E. 40).
One regularly elected to an office created under a city charter, which prescribes the term of office, can not, during the term for which he was elected, be legally discharged from that office, unless removed in the manner prescribed by law. Shaw v. Macon, 21 Ga. 280; Raley v. Warrenton, 120 Ga. 365 (47 S. E. 972); Wilson v. Dalton, 135 Ga. 240, 246 (69 S. E. 163). This was the rule under the common law. When declared by statute it has double sanction. So, under a statute which declared that policemen shall hold office for four years and be subject to removal for cause only, a policeman could not be summarily removed by the police board during the term of four years for which he was appointed. State ex rel. Chapman v. Walbridge, 153 Mo. 194 (54 S. W. 447); Hallgren v. Campbell, 82 Mich. 255 (46 N. W. 381, 9 L. R. A. 408, 21 Am. St. R. 557). By the act of 1916 this rule
"We will now briefly consider the errors alleged by counsel for the city to have been committed by the Court of Appeals in its decision in this -case. First, it is said “ that this case is absolutely controlled by the decision of this court in Mayor &c. of Brunswick v. Fahm, 60 Ga. 109.” ' We can not agree with this contention. Under the charter of Brunswick.in force at the time the Fahm case was decided, the clerk of the council of that city was elected by the mayor and aldermen for the term of one year, “unless sooner removed from office.” Acts 1872-3, p. 151. Fahm was elected clerk and treasurer for the year 1875. About September, 1875, he was prosecuted by the mayor for forgery. A true bill for this offense was found against him in November, 1875. When prosecuted he was imprisoned for some two or three weeks. He was dismissed from office, and another person elected in his stead to'fill same. In the spring of 1876 he was acquitted, and he sued the city for the unpaid part of his salary for the year 1875. This court said: “ In the view we all take of the case, it is unnecessary to consider and decide but one question made in the motion for a new trial, and that is, that the verdict is contrary to law. Fahm had no right, in law, to recover in the action for his salary, be
The second contention of the city is, “that when Bunch was put in jail a vacancy existed.” It is asserted that the office of the plaintiff became vacant by reason of his indictment and arrest for murder and his lodgment in jail after arrest to answer this grave charge. It is claimed these facts constituted an abandonment of the office, or the “ ceasing to perform its duties,” which, under the Civil Code (1910), § 264, par. 7, created a vacancy in this office, which could be filled and was in fact filled by the board of civil-service •commissioners of the city. This paragraph reads as follows: “ All offices in the State are vacated by abandoning the office and ceasing to perform its duties, or either.” This court has construed this language to mean “ the wilful and voluntary forsaking or relinquishment of the office or of the right to the same, or a wilful and voluntary failure to discharge its duties.” Johnson v. Brooks, 139 Ga. 787 (78 S. E. 37). It can not be said, under the facts of this case, that the plaintiff wilfully and voluntarily relinquished this office or the right to the same, or that he wilfully and voluntarily failed to discharge its duties, He failed to discharge its duties for a period of 31 days, by reason of an occurrence over which he had no control. For this reason he did not wilfully and voluntarily fail to discharge the duties of the office; and no vacancy occurred which could be filled by appointment of another. People ex rel. Nugent v. Police Comrs. of New York, 114 N. Y. 245 (21 N. E. 421); People ex rel. Mitchell v. Martin, 143 N. Y. 407 (38 N. E. 460). Certainly the question whether he had abandoned the office or ceased to discharge its duties could not be ultimately determined against him without a trial. State &c. v. Harrison, 113 Ind. 434 (16 N. E. 384, 3 Am. St. R. 663).
In the third place it is contended that the necessity of the situation justified the removal of the plaintiff and the appointment of one in his place. It is earnestly stressed that “government must go on,” and that this necessity would justify the disregard of a plain provision of a statute, requiring a trial before removal of this city detective. To this we are unable to agree. The government could be run without a violation of this law. The board of civil-service commissioners could have suspended plaintiff
In the fourth place, it is urged that the act of 1916, which prohibits the remov'al or suspension of a policeman without trial, is not applicable under the facts of this case. It is said that the purpose of laws prohibiting the discharge of officers, without trial is to insure the continuance in the public service of faithful and competent officers, regardless of their political affiliations, and to make their tenure of office independent of all political considerations. For this reason it is urged that these laws do not apply in a case where the removal is clearly not made for political purposes but from the incapacity of the officer to discharge the duties of his office. If this were true, such statutes would be rendered largely nugatory. This would be adding to these statutes an exception not provided therein. The statute under consideration makes no such exception. "We do not feel authorized to make such an exception ourselves, as this would be assumption of legislative power we do not possess and do not wish to exercise. The efEect of such construction of the statute we are considering would be largely to destroy the purposes for which it was enacted. ,
Finally, it is insisted that the plaintiff can not recover, because his salary has been paid in good faith to another, de-facto occupant of the office; and because there has been no judgment of a court reinstating him. It has long been a disputed question whether the payment of a salary of an office to a de facto occupant would exonerate the poolitical body from its payment to the de jure officer. Selby v. City of Portland, 14 Or. 243 (12 Pac. 377, 58 Am. R. 307); Coe v. City of Dothan (Ala. App.), 94 So. 186. This court has followed the rule that the right of the officer to recover his salary ceases until he establishes his title to the office in a direct action, where the government in good- faith pays the salary to a de facto officer holding under color of title. Maltox v. Board of Education, supra. The rule, that payment to a de facto officer is a good defense to an action by the. de jure officer to recover the ’ salary of the office, and that the de .jure officer must establish his title to the office in a direct action for that purpose, annlies
We are of the opinion that the decision of the Court of Appeals should be affirmed.
Judgment affirmed.