Lancaster v. Hill

Jun 15, 1911
Reporters:
, ,
Before:
Evans
Evans, P. J.

This is a proceeding by the solicitor-general of the Atlanta circuit, on the relation of J. D. Cromer, to remove from office C. M. Lancaster, a constable of Fulton county. The original petition assigned, as grounds for his removal, (1) that he insisted on levying a fi. fa. after the defendant and the plaintiff in execution had agreed that the fi. fa. should be temporarily stayed, unless his costs were paid, which insistence was in the business office of the relator and in the presence of some of his patrons, and that the constable only desisted when the defendant had taken further legal steps by procuring a supersedeas, of the judgment on which the execution issued; -(2) that the officer is unreasonable, rough, and domineering in his methods, delighting to oppress the poor and the weak and to humiliate the innocent, and that he has an exaggerated conception of the importance of his office; (3) that on three occasions he has been convicted of being drunk and disorderly in the recorder’s court of the City of Atlanta, and in the *407last two offenses ‍​‌‌​​​​‌‌‌​​​​​‌​‌‌​​‌‌​​​‌​‌​​​​‌‌​​​‌​‌‌‌​‌​​​‌‌​‌​‌‌​​‌​‌‌​​‌‌​​​‌​​​‌​​​​‌​‌‌​‌‌​‌​‌​​‌​​‌​​‍his disorderly conduct consisted in the use of vile, vulgar, and profane language; (4) that the constable has been guilty of divers and sundry other acts of cruelty and misconduct; and the plaintiff asks permission of the court to produce evidence thereof. The constable demurred to the sufficiency of the complaint. Whereupon the relator amended by alleging the following additional grounds for the officer’s removal: (5) The officer went to the house of Mrs. J. A. Burton to execute a fi. fa. against her and her husband, by levying on the household goods of the defendants. Mrs. Burton exhibited her exemption certificate, legal in form and substance, and’ duly allowed by the ordinary, embracing the household goods upon which the officer indicated his intention to levy. Mrs. Burton was sick, and requested the ’officer to desist from levying the fi. fa. Whereupon the constable said he would levy the fi. fa. unless she paid to him $3.90. She borrowed the money and paid it to the officer. It is charged that the defendant deliberately harrassed, threatened, and humiliated Mrs. Burton, by threats of an illegal levy, into paying him money to which he was not entitled in law at the time, and that the defendant thereby extorted from her, by color of his office, money that was not due him. (6) He received a certain sum of money from a claimant of property on which he had levied, with the understanding that it would be returned to him upon the execution of proper claim and forthcoming bonds with good security. Such bonds were executed and tendered to the officer, who refused to accept them or to deliver the money to the claimant. It is charged “that the act of the said Lancaster in receiving a cash bond from a third party was illegal and improper, and that the taking and receiving of said money by color of his office was illegal and improper. Belator further charges that the keeping of said money when proper bond and security were tendered him was illegal and improper.” (7) The constable executed a writ of attachment by an excessive levy on household goods; the levy was made outside of the district ‍​‌‌​​​​‌‌‌​​​​​‌​‌‌​​‌‌​​​‌​‌​​​​‌‌​​​‌​‌‌‌​‌​​​‌‌​‌​‌‌​​‌​‌‌​​‌‌​​​‌​​​‌​​​​‌​‌‌​‌‌​‌​‌​​‌​​‌​​‍where the officer held his commission, and the goods were taken to the court-room of the justice of the peace in the officer’s district. It is charged “that the said defendant, in making the said grossly excessive levy and in removing said property as aforesaid was guilty of the most reprehensible misconduct and misbehavior in office.” Other amendments were allowed, amplifying the specific *408charges by supplying details of the averments. The defendant objected to the -amendments, because the original petition was so defective in the statement of a legal cause of action that it did .not serve as a basis for amendment, and that as amended no sufficient cause. was alleged for his removal from office. Certain special demurrers were urged, and, with one exception, were overruled, and ‘the general demurrer was also overruled. The exception is to the overruling of the demurrers.

1. Constables are subject to be removed from office on the same grounds and on the same proceedings as clerks of the superior court are, and on conviction for malpractice in office as justices of the peace are. Civil Code (1910), § 4681. Clerks of the superior court “are subject to be removed from office by the judge of the said court for any sufficient cause, including incapacity or misbehavior in office, charges for which must be exhibited to the court in writing and the facts tried by a special jury, such clerk being entitled to a copy of the charges three days before trial.” Civil Code (1910), § 4897. Constables may therefore be removed from office for any sufficient cause, including official incapacity, misbehavior, or as a result of a conviction for malpractice in ■ office. ■ The first ground for removal is that prescribed for clerks of the superior court, made on written specification of charge, and the last is the automatic result of a conviction for malpractice in office. The petition in the present case is framed under the Civil Code (1910), § 48Ó.7, and the subject-matter of inquiry is the sufficiency of the various charges as alleging cause for removal of a constable under ‘this code section. Sufficient cause means legal cause, and that which specially relates to and affects the administration of the office, and ‍​‌‌​​​​‌‌‌​​​​​‌​‌‌​​‌‌​​​‌​‌​​​​‌‌​​​‌​‌‌‌​‌​​​‌‌​‌​‌‌​​‌​‌‌​​‌‌​​​‌​​​‌​​​​‌​‌‌​‌‌​‌​‌​​‌​​‌​​‍must be restricted to something of a substantial nature directly affecting the rights and interests of the public. Boggs case, 11 Coke, 93b; State v. Duluth, 53 Minn. 238 (55 N. W. 118, 39 Am. St. R. 595). The specification that sufficient cause includes official incapacity and misbehavior would seem to import that these items of specification were intended rather as an enlargement than a restriction as to what constitutes sufficient cause to remove an officer. We do not think that the words “suffidient cause2’ should be construed to embrace any cause not affecting the competency of the officer and his official conduct.

2. A plaintiff in execution has control of the process and may *409direct the executing officer as to the time and manner of enforcing it. Hatcher v. Lord, 115 Ga. 623 (41 S. E. 1007, 61 L. R. A. 353); Gorham v. Gale, 7 Cowen, 739 (17 Am. Dec. 549); Isler v. Colgrove, 35 N. C. 335; Patton v. Hammer, 28 Ala. 618. The inclusion of the officer’s fee in the execution does not give the officer the power of enforcement contrary-to‘the plaintiffs direction, since the court costs, embracing the officer’s fees, are a part of the plaintiffs recovery, for the payment of which to the officers the plaintiff is ultimately bound. If the plaintiff prevents or obstructs the levying officer from executing the process, the officer may have judgment ^gainst the plaintiff for his costs, and-have execution issued thereon. Robertson v. Smith, 37 Ga. 604. It may be that a sheriff or constable would be permitted to sell in case of collusion between the parties and when the plaintiff is irresponsible. Jackson v. Anderson, 4 Wend. 474. However this record does‘not present such a ease. The first count or charge as ‘a basis for the constable’s removal, when reduced to its bare facts, is that the constable insisted on a levy of the fi. fa. after the plaintiff’s attorney had directed him to postpone his levy, unless his costs were paid. The constable was entitled to his costs, but was not entitled to enforce collection by a levy of the fi. fa. after he was directed by the plaintiff to withhold action for a time. ‘Still we do not think the officer’s insistence on the payment of his costs, or, on default thereof, that he would levy the fi. fa., ground ‍​‌‌​​​​‌‌‌​​​​​‌​‌‌​​‌‌​​​‌​‌​​​​‌‌​​​‌​‌‌‌​‌​​​‌‌​‌​‌‌​​‌​‌‌​​‌‌​​​‌​​​‌​​​​‌​‌‌​‌‌​‌​‌​​‌​​‌​​‍for removal from office, where there was-no actual levy and nothing to show that the officer was instigated by a desire to oppress the defendant, or other motive than a purpose to collect his costs in a manner supposed by him to be proper and legal.

3. That an officer may be rude and domineering in his methods of administering his office is not ground for removal, unless his rudeness extends to illegality of conduct or to. oppression under color of office. Lack of civility in official acts very probably fvill cause the electorate to decline to re-elect an incumbent who is wanting in the temperamental qualities which the ethical standard of the community may prescribe, but is not sufficient, when disassociated from illegal conduct, for the officer’s removal from office by the court. Individual idiosyncrasy and temperament of an officer capacitated to discharge his-official duties is not the official incapacity recognized‘by the statute as a ground for removal.

*4104. It is official misbehavior which the statute specifies as a ground for removal from office, and not individual misconduct wholly apart from the discharge of official duty. Hawkins v. State, 54 Ga. 653. It is not alleged that the constable was acting in an official capacity when he was drunk, or that as a result of such drunkenness he was guilty of any wrongful official act or omission to act. The allegation of the conviction of the defendant in the recorder’s court on the charge of drunkenness and disorderly conduct, without connecting such offenses with the defendant’s office, is not good as an allegation of official misbehavior.

5. “Extortion shall consist in any public officer’s unlawfully taking, by color of his office, from any person any money or thing of value that is- not due to him, or more than his due.” Penal Code (1910), § 302. With regard to specifications marked (5) ‘and (6) in the foregoing statement of facts, the facts alleged make a case of extortion. <

6. The last specification of official misbehavior is an excessive levy of an attachment on household goods, made by the constable outside of his bailiwick. It is alleged, that the constable seized property three or four times in excess of the amount named in the attachment, and carried the same out of the ‍​‌‌​​​​‌‌‌​​​​​‌​‌‌​​‌‌​​​‌​‌​​​​‌‌​​​‌​‌‌‌​‌​​​‌‌​‌​‌‌​​‌​‌‌​​‌‌​​​‌​​​‌​​​​‌​‌‌​‌‌​‌​‌​​‌​​‌​​‍district where the levy was made to the court-room‘of the magistrate who issued the attachment, some five miles away; that the constable knew he- had no legal right to levy the attachment outside of the district of which he was constable; and that he deliberately and wilfully removed the property for the- purpose of prejudicing the rights of the defendant in attachment, and of making it more difficult for him to protect his property. A constable has no right to execute civil process outside of his district, unless specially authorized by statute; and if he does so, knowing that he is without power to lawfully act, and with a purpose of oppressing the defendant, such conduct, is official misbehavior and is cause for removal.

7. The original petition charged generally that the defendant was guilty of official misconduct, and also specially that he was guilty of certain alleged misbehavior. Even though the particular matters specified be insufficient to constitute official misconduct, the petition was not so defective that it could not be perfected by proper amendments. City of Columbus v. Anglin, 120 Ga. 785 (48 S. E. 318). Judgment affirmed.

All the Justices concur.