104 Ga. 105 | Ga. | 1898
An application for a writ of prohibition was presented by Grayson and others, members of the board of fire commissioners of the City of Savannah, established by the act of December 4, 1895 (Acts of 1895, p. 292), against the mayor and aldermen of that city, to prohibit the latter from trying the petitioners for alleged misconduct in office. Judge Sweat, -of the Brunswick circuit, in the absence from the State of Judge Falligant, of the Eastern circuit, entertained the petition, and, •on October 11, 1897, granted thereon an order, the portion of
This motion, after due notice to the plaintiffs, was heard on November 5, 1897, by Judge Falligant, who passed an order in the language below quoted: “After full consideration of said motion upon arguments and authorities produced, it is held that the said defendants, the Mayor and Aldermen of the City of Savannah, have no express or implied authority to try and remove said ‘TheSavannah Board of Fire Commissioners/ The remedy is with the General Assembly of Georgia, either by repeal or by amendment to the act creating said board, giving to the mayor and aldermen the right and authority claimed. This power was granted to the mayor and aldermen expressly
After thorough reflection we are satisfied, however, that the question presented by this motion to dismiss is not controlled by the decision in that case. There is, in prohibition cases, no statutory provision for a restraining order; and consequently
We will now endeavor to show that the motion made-by the mayor and aldermen in the present case should not be treated as simply one to set aside a mere restraining order, but that it was in its essence a motion to revoke the granting of the writ of prohibition. A careful examination and consideration of the language therein used convinces us that it would be “sticking in the bark” to hold that its only purpose was to get rid of a mere restraining order — a thing which, strictly speaking, has no place in prohibition practice, and the dissolution of which (even if it could be treated as something separate from the granting of the writ) would have accomplished nothing; for, unless the granting of the motion would have had the effect of setting aside the previous sanction of the petition, and as a consequence revoking the writ of prohibition, the case, even after the motion had been sustained, would still have stood for a hearing at the next term, the mayor and aldermen would in the meanwhile still have been prohibited from proceeding with the trial of the plaintiffs, and accordingly, both the making of the motion and the action of the judge thereon would practically have been a farce. We are quite certain that the eminent counsel for the plaintiffs in error never intended to indulge in such child’s play as this. On the contrary, we think the motion filed by him evidences an intention to apply for and obtain a revocation of the granting of the writ of prohibition itself, and thus bring the case to a complete termination. While this motion does not in terms ask for a revocation of the writ which had issued, it amounts in substance to the same thing as if it had done so. It directly sought the dissolution of the order which restrained and prohibited the mayor and aldermen from proceeding with the trial of the plaintiffs, and itself declared that it was “based upon the ground that no cause for a restraining order or prohibition [was] set.forth in the petition.” This was neither more nor less than an assertion that the petition was absolutely without merit, and was therefore improvidently sane
It is proper in this connection to state that it was urged in the argument here, that as the mayor and aldermen had not filed an answer, their motion could not have been predicated upon this section, because, in providing for the making of a motion “ at chambers to set aside or dissolve the order granting the sanction of the court,” it declares that such motion may be made “on ten days previous notice and the filing of the defendant’s answer.” Construing this language in connection with section 4926, which, as has been seen, allows a defendant, on ten days notice to the opposite party, to move in vacation for a revocation of any extraordinary writ, without regard to whether he has or has not filed his answer, it would seem that the filing of the same is, as the question in hjmd, rather a matter of privilege than an essential prerequisite to the making of the
The case of Shaw v. Mayor & Council of Macon, 19 Ga. 468, which was cited by counsel for the defendants in error, was an action instituted bjr Shaw for “the amount of salary that would have accrued to him as marshal of the City of Macon, for the time intervening his removal and the expiration of the term
The fact that the General Assembly, by an act approved December 28, 1896 (Acts of 1896, p. 244), amended a previous .act approved November 30, 1895 (Acts of 1895, p. 306), creating a park and tree commission for the City of Savannah, so as to confer upon the municipal authorities express power to remove from office members of that commission, is of no great weight in arriving at the true law of the present case. It will be noted that the act creating the park and tree commission wTas amended in several respects; and very probably it was,
Finally, we will remark that if what we now decide is not. sound, we have the singular anomaly of a board of municipal officers who are not amenable to any authority whatsoever. We can not assent to such a conclusion. It is, in the language-of our brother Adams, one which “ought to give us pause.”
Judgment reversed.