*1 29026. et al. JACKSON v. INMAN.
29054. v. INMAN JACKSON et al.
29066. et al. JACKSON v. INMAN.
Per curiam. appeals These three related involve contests between Chief of F. Police John Inman on one side and Atlanta, Atlanta, Mayor one of his appointees, the Atlanta Council on the other side. For simplicity, parties will be referred to as Chief Inman and City.
The 1973 General Assembly enacted a new charter for 7, 1974, which was effective January except for the election of elected officers which took place 1973.
The provided new charter in Sec. 7-104 for the initial administrative organization government the enactment of an ordinance according to the home rule (b) (1). procedures of Code Ann. 69-1017 The council enacted organization initial 4, 1974, ordinance on March approved which was by the on March 1974. For purposes of these appeals, the effect of this ordinance was to create a Department of Public Safety headed aby commissioner. Included in the department a Services, were Bureau of Fire a Bureau Defense, of Civil and a Bureau of Police Services. 29054) (No. Chief Inman then filed suit against the City prevent to pursuant action to the ordinance that would tend to reduce the Department Police from its present status as a "department” city government. This suit also sought: prevent appointment of a Commissioner of Public Safety, prevent interference with Chief Inman’s normal performance Police, duties as Chief of a declaration 3-301(d) the ordinance was in conflict with Section charter, the new and a declaration that the ordinance deprived Chief Inman of property and contract that he had as Chief of Police. parties then entered into a stipulation of facts agreed for the trial judge to hear and decide all issues
in the case. so,
The trial did judge 3,1974, and on May he entered (1) permanent injunctive relief denied that: (2) against City; the ordinance shall not declared that paid any salary Inman remuneration affect salary prior ordinance, after nor his rate (3) ordinance; declared enactment Inman would eligible Department for the office *2 having twenty-five years Head Emeritus after served City, eight years have of which shall been served with any comparable position Chief of Police in of (4) position provided declaratory future; and denied other in the all sought by Inman. relief Chief superseding this Chief Inman obtained order appealed pending appeal, judgment to the Court and he Appeals Appeals. case to of transferred the of The Court appellate jurisdiction proper in this this court since court. judgment May entry in
After the 3rd No. suspended City 29054, as Chief Police Chief Inman acting appointed head of the Chafin as and Clinton Bureau of Police Services. (No. May 1974, 6, Chief Inman filed suit On 29026) suspension against City. that his He contended temporarily sought void, he and was null and and interfering permanently City enjoin him from with performance his Chief of Police. in the duties as hearing May judge 21,1974, In the trial conducted a (1)temporarily enjoined judgment that: and entered a suspension, implementing City from Chief Inman’s (2) interfering enjoined temporarily from with performance duties. Inman in the of his appealed court, and this is Case
The then this 29026. No. court, in this
After No. 29026 was docketed court to filed the trial his second Inman amendments sought injunctive These relief suit. amendments constitutionality the new charter of the attacked the judge City, 1974, 19, on the trial entered June (1)declaring judgment: unconstitutional, the new charter (2) interfering enjoining Inman from with Chief performance Police, his as Chief in the (3) duties conducting enjoining City from a trial of Chief Inman. City appealed court,
The to this and this is Case No. 29066. public importance
Because of the of the issues presented by appeals, they these were advanced on court’s calendar for determination at the earliest practicable proceed date. nowWe to that determination. judgment
The in No. 29066 is reversed. This means City’s that the new charter is constitutional and valid. ' judgment partly The in No. 29026 is affirmed and partly reversed. This means that Chief Inman was not an appointed 3-301(d) department director of a under Section suspended
of the new charter and could not be provisions. However, accordance with its because of rulings cases, our in the other two the remainder of this judgment is reversed. judgment
The in No. 29054 is affirmed. This means proceed reorganization can with under its specified charter, but Chief Inman’s in the judgment preserved. trial court’s are
I. in No. 29066 which declared the (Ga. special p. seq.), creating Act of 1973 L. 2188 et *3 City a "New Atlanta, Charter” for the of to be challenged appeal. unconstitutional in this We believe properly Superior this issue was raised in DeKalb Court and that court was authorized to decide the constitutionality City’s "New Charter.” legislature powerless
The trial court decided the
was
adopt
this "New Charter” for Atlanta. It determined
"very large
the "New Charter” was a
amendment” to the
existing
City
authority
charter which the
had
to amend
general
Georgia
under
home rule laws. The
Constitution
(Code
2-401) prohibits
adoption by
§ Ann.
the General
Assembly
special
covering
subject
of a
law
a
matter for
provision
by
existing general
which
is made
law. The
general
City
revising
laws available to the
for use in
its
government are those found in the 1962 and the 1965
Municipal
Acts,
Home Rule
as amended. These laws were
Assembly
authority
enacted
the General
under the
of
(Code
the 1954 Home Rule Constitutional Amendment
2-8301).
Pipeline
City
Ann.
See Plantation
Co. v.
(178
868).
Bremen,
General commission to created and directed a charter
"completely revise the charter of the provided of Atlanta” and that the revision take "shall supersede form of a new charter which . . . would replace present [the] charter.” The revision was to changes include "such substantive as the commission may necessary appropriate im- deem for provement government of Atlanta.” clearly
An examination of the new charter reveals government changed city strong drastically has been government, from a commission form of under legislated supervised which the board of aldermen departments through city administrative committees, government, to a form of with the legislative mayor body, executive, as the and the council as the requiring separation powers a classic government. contained in the old form of city government Even casual observer of Atlanta recognize designed will the new charter was government create a new form of structured to handle growing public the burdensome and ever demands imposed government large This on the urban areas. clearly accomplished by the 1973 *4 was special intended to be creating Assembly a "New
Act General Charter” for Atlanta. legislative Assembly
The General has reserved the power existing when such to enact new charters for cities changes composition charters include drastic in the city government the election and terms of form of authority governing the cities of the members of office as in this new charter for specific power Atlanta. This Assembly expressly in the the General reserved §Ann. 69-1018 found in Code 1965 Home Rule Act and is (a) 1. powers given argued the the It is that some of can also be found in the of Atlanta in the new charter prevented Statutes, therefore this Home Rule exercising legislative Assembly from its reserved General power. persuasive argument is not as the This general through Atlanta, the exercise of home rule powers, change legally the form and could not government composition of its and the election terms special Act of office of its elected officials without this legislature. power of We believe the reserve Assembly General was sufficient to authorize the Atlanta, the new charter for and we see no creation of reason why Assembly General could not allow the exercising existing general home to continue powers City already enjoyed in common rule other with
municipalities. provision addition, In we find no in the 1962 Home pre-empted adoption Rule Act which the 1973 the constitutional special creating Act a new charter for the power Therefore, of Atlanta. we conclude that adopt entirely new charter such as the one here present involved cannot be found in either or both of the Consequently, legislative power home rule still statutes. Assembly resides the General under § Ann. 2-1301. Constitution. Code The contention is also made that Atlanta’s new delegation charter a non-uniform constitutes legislative authority permitted by which is not Georgia. uniformity requirements Constitution of (Code previously contained in the Constitution Ann. 2-8301) replaced by were the 1954 home rule amendment language to the Constitution. The of this constitutional 2-8301), provide (§ amended, does not as now section municipal uniformity requirement for new charters and acknowledged by decision of this court in this was (114 Mayor Beach, 12 Ga. Bobo v. &c. Savannah *5 374) (1960). Assembly Therefore, SE2d the General is constitutionally power legislative free to exercise its reserved when it
on a non-uniform basis enacts municipality charter for a did for Atlanta. summary, opinion special
In it is our Act of 1973 creating a new charter for the of Atlanta is not subject to the constitutional attacks made on init judgment case, Superior and the of DeKalb Court declaring the Act unconstitutional is reversed.
II. Having City’s held that new charter only remaining valid, constitutional and issues relate and status of Chief Inman under the new 3-301(d) provides charter. Section of the new charter part present departments as follows: ". . . all directors of serving appointment mayor under of the shall continue expiration present to serve until the of their term of office provided by as now law on the effective date of this suspend charter. The shall be authorized to and/or departments during remove directors of their term of office but removal shall not become effective for a (21) period twenty-one days following calendar the date mayor’s giving of the of written notice of such action and copy the reasons therefor to said director with a thereof to the Council.”
We conclude that Chief Inman is not a director of a department City appointed provisions under the pend- of the new charter but is an "interim” director ing reorganization § under 7-104 of the new charter. 3-301(d) suspended Therefore, he could not under of directors of provides only charter, the new which that departments appointed under the new charter can be suspended specified. in the manner As Chief Inman was May appointed department 3,1974 not on director of a attempted suspension charter, under the new his on that following date However, was null and void. im- plementation appointment of the new charter department charter, division heads under the position longer of "interim” director will no exist. The suspension department appointed or removal of heads reappointed including Charter, under the 1973 appointed Inman should thereunder, he be shall be provisions governed by Charter. of the 1973 judgment part in No. 29026 that that holdWe implementing enjoined temporarily from part suspension correct, but that Inman’s enjoined temporarily from performance interfering of his in the Inman with Chief incorrect. duties was
hi. Superior judgment DeKalb conclude We enjoining temporarily of Atlanta Council Court conducting Chief Inman the removal of a trial for from *6 City, provisions the charter of of the old the under pending appointments reorganization, er- is
under city, of the the council new charter Under the roneous. jure Board of Aldermen and to the old successor is the de body proper However, a trial. to conduct such it is the with the in accordance be conducted trial must such provisions in effect at the time of the charter by old Board of Aldermen. elected Inman was IV. permitted judgment 29054 in No.
The proceed reorganization It also its new charter. under with specified and status certain Chief Inman had judgment, appealed City. his Inman with the proceed being City could not main contention reorganization did under the new charter. with not cross rights specified complained appeal and has not contained Inman with the and status of Chief judgment. We, therefore, that the trial court’s hold in this correct, affirmed in and is in No. 29054 was totality. its Judgment
Judgment in No. in No. 29066 reversed. in No. Judgment part; part. 29026 reversed affirmed except J., J, concur, Gunter, All 29054 the Justices affirmed. specially Nichols, 3, P. and in Division who concurs J., who dissent. and Undercofler, July Argued 3, 25, 1974 Decided June July Rehearing 23, 1974. denied Henry Jr., Henry Bauer, E. Bowden, John R. L. Lokey, Weeks, for Dougherty, M. H. Charles James Jackson. Pye,
Wesley T. for Inman. Durwood R. Asinof, concurring specially. Justice, Gunter, my date of the the effective that since It is view reorganization 1974, ordinance, Chief Inman March city. department He of a a "director” has not been by suspended by tried cannot be therefore (d), provisions 3-301 of Section under the council departments Only can be directors new charter. personnel suspended All other tried the council. except City, officials, employed the elected departments, the "Chief Administrative directors of Officer,” governed by 3-501 of the Section are provides provision shall the council charter. That system rules and and enact of civil service establish a regulations governing appointing "employing personnel.” dismissing the new charter has held that The court reorganization ordinance and that constitutional my not a Inman is view that Chief Since it is enacted. City, subject department he is director of provisions pursuant only of Sections dismissal *7 charter. 3-503 of the new 3-501 and 7, 1974, after March I therefore hold that would by suspended the cannot be could not and Chief Inman by the council. and tried judgments explanation, in the I concur With by the court. rendered dissenting. Presiding Justice, Nichols, agree 1973 Charter I that the
While any subject attacks the constitutional to Atlanta is not made agree 1973 charter case, I can not in this rights, responsibilities any deprives or duties Inman of during Department his term the Police to control office. public public not the trust and is is a
"A office public property has no vested A officer incumbent. 574 Garrett, v. Moseley of his office. compensation in
right
(187
56,
Davis, 188
20);
Ga.
810,
SE
Walton v.
182 Ga.
815
216 Ga.
(2
603),
v.
Burpee
Logan,
and citations.”
58
SE2d
339).
(117
Yet,
public
office
the holder
434, 436
SE2d
removed.
summarily
in
cases be
can not
all
Davis,
court in Walton v.
decision of this
The earlier
(2
603),
upon
authority
relied
56, 62
SE2d
188 Ga.
created by
an office
accept
held: "To
v.
Burpee
Logan,
that
knowledge of the fact
with
legislative authority
by
appointing
cause
be ousted without
may
holder
power
one to whom that
has
or
the will of some
power,
at
into an office
To be inducted
thing.
is one
delegated,
been
term,
to have the office declared
right
fixed
with the
for a
which concern
causes
only
specified
vacant
for certain
former,
In the
holder,
thing.
a far different
is
proviso
with the
his commission
granted
holder is
another;
at the will of
at
time ousted
may
he
be
understanding
and its tenure
the office with that
he takes
shortened
may
be
possibility
limited
by
(67
McLendon,
224
Ga.
SE
Gray
cause.
v.
without
[134
(173
Huiet,
660)]. In
311
SE
859)];
v.
Ga.
Felton
[178
office,
latter,
the holder of his
its
right
deprive
emoluments,
honor,
dependent
perquisites
and its
facts; and before such
the determination
of certain
upon
is,
determined,
according
he
to the law of the
facts are
heard.
land,
opportunity
to notice and an
entitled
case,
notice and without
to oust him without
In such a
law,
him
and to
hearing
deny
process
is to
due
him
which have been vouchsafed to
withhold from
for 'time
enjoyed
and which
have
almost
they
freemen
of man runneth
to the con-
memory
whereof
”
trary.’
(173
Perkerson,
230,
178
234
SE
In
v.
Ga.
McDuffie
1002)
office was
151,
public
ALR
constitutes
what
" 'An individual who has
as follows:
discussed
detail
law,
prescribed by
elected in a manner
appointed
been
law,
him
and who
designation
given
has a
or title
who
concerning
public, assigned
exercises
functions
Justices,
law,
v.
him
is a
officer.’
public
Bradford
James,
(2);
332;
Wiley
Sparta,
P 53 ALR question dealt with the of what are the essential elements to public constitute office. The court discussed question elaborately and assembled a great number of cases throughout the country dealing Also, with that question. the case has been thoroughly annotated in ALR and reference is made thereto rather than to collect all of the same opinion. authorities In Wyman’s Law, 163, 44, Administrative it is said: 'A public office, then, right, is the authority, and duty *9 given period, by by which for a either fixed
conferred law creating power through pleasure by the of the of or law portion government, with some individual is invested government, sovereign of the to be of the functions public. by of the The him for the benefit exercised by powers conferred, contract, a to is exercise warrant by in and limitation some the It finds its source but law. governmental power. salary, expression Oath, of act of operation, signs scope duties, status; of the official of are thing in is that some no one essential. The essential but gov- way is identified with the or other the officer ” ernment.’ of the Atlanta In 1943 the Charter of powers amended so as to define the etc. Chief part of in Police. amendment read as This follows: " '9-102(a). The of Police shall be Police. Chief the of Department Police, chief officer of the of shall executive power authority management full have and over and with full and charged thereof, and conduct shall be complete responsibility for its successful and efficient operation. faithfully execute all He shall laws State Georgia He of ordinances of the of Atlanta. shall and give power authority to orders to the have and such Department Police as officers and members of the of he duty may proper; render deem and be their to to shall implicit obedience. him and his orders " (b). Vacancy '9-102 Police. of of office vacancy shall be the office of the Whenever there Chief by vacancy Police, of such shall be filled election Mayor by Council, election to and General such be by Mayor conducted as are other elections Council and the same rules.’ General under " (c). have '9-102 The Chief of Police shall power, assign duty and it be his to all exclusive officers and respective shall Department
employees to of the Police their changes time duties and to make such from to proper may he to interest time as deem the best Department City. power the Police The herein power assign conferred shall include the to such members Department, may he in such of the Police numbers sundry to the various activities choose Department, duty, plain clothes, detective such as traffic various territories and the bureau, the various watches Department shall of the Police members where such work.’ " (d). subject Chief of Police shall '9-102 Mayor suspension, removal, or demotion prescribed by trial in the manner after General Council Any provisions decision of the this Charter. the other demoting suspending, Mayor discharging and General Council subject to review such Chief shall be County Superior a writ of certiora- Fulton on Court of ” ri.’ (47 City Atlanta, 543, 545 SE2d 203 Ga. In Yarn v. 556), provisions referring of the Charter to the above duty said, "It is thus made Atlanta it was assign policemen of Police of the Chief performance *10 department duty any and within the city any territory limits which within confine them to may of his in the exercise think advisable he the Act "To Thus, the time at and discretion.” Reincorporate supra, .,” . Atlanta. Department Police enacted, subject only of Police ran the the Chief general mayor council then and after by by superior subject writ of trial, court to review certiorari. stated in of Atlanta
The 1973 Charter part of office current terms 7-101.The follows: "Section as appointed and officers officials elected and of all City serving agencies, of this the effective date on its and shall continue Charter, and not be diminished shall (a) Any or Section 7-105. and effect. full force interest, part private, public on or in vested in whole or validity might Charter, this whose date of the effective any provisions preserved by reference or be sustained by repealed by Charter, not be affected this shall of law this Charter. right apply any This Section shall by public office not conferred elective interest in Charter.” permit question new charter is did the The real powers Police of the Chief of the functions and dilution of agency would exercise which of a new the creation granted powers previously of Police the Chief and duties legislative initial administrative enactment? (Section 7-104) provision organization of the 1973 Charter light must be read such charter. of Sections 7-101and 7-105 of The current term office of all elected and appointed officials officers referred to in Section 7-101 all must construed refer to elements including tenure, duration, term terms, his of office duty powers, emoluments, and as well as that and not salary merely together and retirement benefits. When read 7-101, Sections 7-104 7-105 do not authorize government sweeping away city of the total but rather orderly protects transition which the tenure of previously appointed elected and for officials definite experienced qualified terms and assures the personnel period. during continue in office such transition provides
The ordinance proposal recommend for the council’s consideration specify departments which shall number and the adopted duties and the functions thereof and when shall statutory have the force of law under the Home Rule (b) (1). Provisions of Code Ann. 69-1017 shall become effective Such ordinance
according to its terms for purposes long administrative and other so as does not protected by interfere with the tenure of the incumbents 7-101 Sections and 7-105. these As to offices these officers law in effect must continue until the end of responsibilities their term of office and their duties and can not be diminished during period such of time. expiration Until of the term to which Chief provided only Inman was he elected can be removed by the charter at the time of his election. *11 opinion majority repeal
The net effect of the is to preserve those Sections which Chief status Inman’s until the of end his term current of office.
I am authorized that to state Mr. Justice Un- dercofler concurs in this dissent. Rehearing.
On Motion for Per curiam. rehearing A motion for in the above three cases was July 1974, 9, filed in this court on Inman. This motion for on of John F. behalf
rehearing contains seven separate grounds. grounds these considered each
We have again, individually, we conclude the record and reviewed rehearing grounds for is meritorious. that none only necessary comment on one the deem it to We ground grounds, of the motion for The fifth number five. judgments rehearing in these contends that this court’s "The court has overlooked reorganization’ are erroneous because: cases the 'initial ordinance the fact that approved 4,1974, new March and enacted the council 7, 1974, the does not have force the March 'reorganize’ city law, to the is insufficient and government Services, Bureau create a of Police and diluting 1963, under the Act of the duties of Chief Inman 'reorganization’ pp. 1183, 1184, can be because such only by accomplished a home rule under the new charter (Ga. provided §in charter ordinance as 7-104 2249), p. 1973, even if such 7-104 be valid.” Laws ground five, it that contends As we read this reorganization by the was not ordinance enacted council pursuant §to 7-104 of the new "home rule ordinance” a charter. litigation, is raised for In all of this this contention rehearing. ground the motion for time in five of first subsequent original complaint, and all Inman’s subsequent amendments in suit and amendments DeKalb procedural Superior Court, did attack reorganization validity All ordinance. legal only at section 6 of the attacks were leveled
Inman’s original reorganization Paragraph 15 ordinance. complaint ... that "section of ordinance averred original prayers vires, null, the from void.” The ultra complaint acting enjoined were reorganization pursuant ordinance and 6 the section of reorganization attached ordinance 6 of the section complaint void. null and exhibit be declared parties stipulation by the entered into of facts office filed in the clerk’s in the trial No. court following: May controversy "An actual 2, 1974, contained plaintiff defendant between the exists respect set out which arisen as issue has with plaintiff declaratory complaint seeks validity 6 of the ordinance of section of this court as *12 580 complaint A.” to the as exhibit
attached City’s brief, filed in the trial court and made a (R-52), part appeal of the record on contained the following: requirements § "Pursuant of 7-104of the day February, charter, on the fourth City Mayor proposed departments presented Atlanta the council a specified
ordinance which the number of duties and the functions proposed passed duly of each. This fourth ordinance was on the day March, 1974, Council of Atlanta approved by mayor day March, on the seventh 1974.” pleadings argument, prior
Nowhere in the to the was the contention made that the or rehearing, motion for pursuant § was not
ordinance charter. enacted to 7-104 of the new important § We consider this because 7-104 of permits the new charter the charter itself to be amended by a "home rule ordinance.” The enactment of such an ordinance the council amounts to an amendment of City’s new charter. provides The Home Rule Act of 1965 that a municipality any can amend its charter in manner except prescribed whatsoever for the limitations in section 4 of that Act. There is no limitation contained in prevents municipality amending 4 section that from its departments charter so as to abolish or all contained municipal government. Therefore, its a "home rule” by ordinance, charter amendment can be enacted and the supersedes new charter amendment so enacted repeals any conflicting provisions contained in the prior charter to amendment. original opinion
As the shows, of this court these premise cases were decided on the ordinance question pursuant was enacted 7-104 of the new contrary. Only charter. There no was contention to the section of the ordinance was attacked. ground rehearing
Therefore, five of the motion for specifically procedural denied; but we hold that validity invalidity of the entire ordinance has not been simply decided in these cases. This issue raised or considered in the trial court. rehearing All the denied. Justices Motion for concur, J.,
except Nichols, J., and who dissent. Undercofler, P. *13 al. GEORGIA et FULLER v. STATE OF 28984.