12 S.E.2d 167 | Ga. Ct. App. | 1940
Where a policeman of the City of Atlanta was suspended by the chief of police, who had legal authority for so doing, for violation of a rule governing the police department, the charge being that the policeman was guilty of accepting a bribe, and an indictment of the policeman on the same charge had been made by the grand jury and was pending in court, and where the charges preferred by the chief were not immediately filed with the police committee for trial at the next meeting of the committee, as required by law, and where in the meantime the policeman remained suspended from service and was not permitted to perform his duties, and no demand was made by him for filing of the charges with the police committee or for a trial of the charges by the committee, and where, when the charges later were filed with the committee, the policeman resigned and no trial was had on the charges by the committee, the suspension was legal; and in the absence of any provision of law for the payment of the policeman's salary for the period of his suspension, he was not entitled to recover of the city salary for such period.
On December 2, 1939, the plaintiff amended the petition and alleged that he was elected as an officer on the police force of the defendant on June 13, 1928, by a resolution as shown on the minute book, and placed on the supernumerary list; that on July 30, 1931, the plaintiff was duly elected as an officer on the regular police force, as shown by resolution on the minute book; that the salary fixed by the defendant for the position held by the plaintiff at the time of his suspension and at the time of his resignation, as shown by an amendment to the charter of the city and an ordinance approved October 19, 1926, was $175 a month for patrolmen with four years' service; that immediately after the plaintiff's suspension he reported for duty and asked to be put to work, and was informed by the secretary to the chief of police that the plaintiff could not work any longer as an officer until such suspension was removed, and that it would be useless for him to report for duty again until such suspension was lifted; that the plaintiff thereupon filed a demand for immediate trial before the mayor, council, and police committee of the city, whose duty it was to give him a trial at the next regular session of the police committee; that it was the duty of the police committee to either try the plaintiff at the next regular session thereof or to call a meeting for that purpose under the provisions of sections 2254 and 2177 of the Code of the City of Atlanta; that the manner of preferring charges against a member of the police department is provided in section 356 of such Code as follows: "The mode of preferring charges against any officer or member of said department, and the manner of their trial, shall be prescribed by the rules of said board (now police committee). *837 The chief, any officer, or member, or employee of said department, may be suspended in the manner provided by the rules of said department until the next session of the board, . . at which time a hearing may be had and sentence adjudged;" and by section 358 of such Code as follows: "The mayor and general council are given full, complete, and unqualified authority to establish, for the department of police, civil-service rules and regulations, to the end that officers, members, and employees shall serve during good behavior and efficient service, and to be promoted according to efficient service and length of time employed in said department, all of which to be adjudged of by said board."
On December 12, 1939, the defendant filed its special demurrer to the amendment of December 2, and moved to strike such amendment and each of the paragraphs thereof on the ground that paragraphs 1 and 2 of the amendment failed to set forth any facts material to the issue which would authorize the plaintiff to recover from the defendant; that paragraph 3 thereof was immaterial and irrelevant, and it nowhere appeared in the petition or in the amendment that charges were preferred against the plaintiff; and that the two sections of the city Code quoted in paragraphs 4 and 5 were immaterial and irrelevant. On the same day the defendant renewed the demurrers theretofore filed on each and every ground thereof, and moved to dismiss the petition as amended. On December 21, 1939, the plaintiff filed another amendment in which he amended the prayer of his original petition and asked for judgment against the defendant for the full amount of his salary at $175 a month up to the date of filing such petition, "and up to the sum of $2500." On December 21, 1939, the judge overruled the special demurrer to the paragraphs of the amendment of December 2, and also passed an order overruling the defendant's demurrer to the petition as amended. The defendant excepted to such judgments pendente lite, and assigned error thereon in the cross-bill of exceptions.
The defendant, in its plea and answer as amended, admitted that it had not paid the plaintiff's salary, and denied liability therefor upon the ground that the police committee had accepted the plaintiff's resignation upon his agreement to waive any claim for salary during the period of his suspension; that after the plaintiff had been indicted by the grand jury for bribery, the chief of police *838 on March 26, 1937, brought charges against the plaintiff for neglect of duty, conduct unbecoming an officer, conduct injurious to the peace and public welfare, and violation of the penal laws of Georgia, which included the charge of bribery upon which the plaintiff had been indicted; that a copy of charges was served on the plaintiff in which he was notified to appear before the committee on a named date to be tried upon these charges; that prior to the date set for the trial, about June 17, 1937, the plaintiff tendered his resignation to the committee and it was accepted; that the plaintiff has not performed or offered to perform the services required of him as a police officer, and that he is barred by his laches, since he made no claim after his suspension in March, 1937, until October 10, 1938, for his salary, at which time there were no funds appropriated for the police department during that year out of which the plaintiff's salary could be paid.
The case came on for trial, and the following facts were stipulated between the parties as true: The plaintiff was regularly appointed a police officer of the City of Atlanta in July, 1928, and continued as such officer until March 8, 1937, when he was suspended by the chief of police. The salary of such officer was $175 a month on March 8, 1937. The police committee, invested under the law with trying police officers, met on March 12 and 26, 1937, and twice a month thereafter, until June 17, 1937. Charges were preferred on March 26, 1937, by the chief of police against the plaintiff, accusing him of accepting money from named persons on stated occasions to influence his conduct as a police officer, and were served on him June 12, 1937. The plaintiff was indicted March 12, 1937, for bribery, growing out of the transactions referred to in the charges made against him by the chief of police, which indictment was filed in the clerk's office on such date. On April 19, 1937, the plaintiff filed with the clerk of the criminal court of Atlanta a demand for trial, which was recorded and spread upon the minutes, and remained in the clerk's office during two separate terms of the court held thereafter, at which there was empanelled a jury ready to try the issues on said indictment, and the plaintiff was not tried and was "thereby exonerated." On June 17, 1937, the plaintiff resigned, which resignation was accepted by the police committee on June 18, 1937, and no further action was taken in the matter. *839
The plaintiff testified that after he was suspended he talked with the secretary of the chief of police, and with the chief, about continuing to exercise his duties as a police officer, and tried to get the chief to let him go back to work; that the chief refused to do this; that he was ready to go back to work; that the charges preferred against him were not served on him until about June 12, 1937, and that at the time he talked to the chief about letting him come back to work he had no notice of any charges being preferred against him; that he was never tried before the police committee on the charges; that what prompted him to tender his resignation was that he wasn't drawing any money and couldn't get a job under the circumstances, and that his guilt or innocence had nothing to do with his resignation; that his attorney, Mr. Hudson, handled the matter exclusively for him and he acted on his advice; that he had a job offered him with Atlantic Steel Company which was dependent upon his being sworn in as a special police officer which the chief of police refused to do; that after his suspension he gave the secretary to the chief of police a demand that he be given a hearing before the police committee, which was never done; that he authorized his attorney to demand the salary claimed to be due by him, and that the first time he made a claim for the salary was October 10, 1938; that either Chief Hornsby or Mr. Bridges, he does not remember which, told him that they would not take any action with reference to his case until the court took what action it was going to take on it (referring to the indictment that was pending in the criminal court of Fulton County); that this was sometime before he resigned; that at no time after he was suspended and prior to his resignation did he appear before the police committee and demand a trial; and that the only thing he did was to file a paper with Mr. Brooks (secretary to Chief Hornsby) asking for a trial.
The plaintiff's attorney, John H. Hudson, Esq., testified that he represented the plaintiff in the matter of his suspension from the Atlanta police force, and that he prepared the demand for trial before the police committee of the city council; that the indictment against the plaintiff was transferred to the criminal court of Fulton County about March 30, 1937; that it was between the time of the plaintiff's suspension and the time that the indictment was transferred that he prepared the demand for trial before the police committee, *840 and told the plaintiff to take it down and give it to the secretary of the chief of police; that he was not given any notice after making demand to appear before the police committee for the plaintiff; that the charges preferred against the plaintiff did not have anything to do with his resignation; that it was done at the instance of the plaintiff so he could accept the position with the Atlantic Steel Company as a special officer; that before writing the demand for salary on October 10, 1938, he had assumed that the plaintiff was going to be paid his money up to the date of his resignation, and therefore did not file any written demand before such date; that he found out that he would have to file a written demand for the salary, and on such date prepared it and the plaintiff signed it.
M. A. Hornsby, chief of police, testified that his secretary at that time was dead, and that he had no recollection of any demand for a hearing; that "neither the plaintiff nor his attorney made any demand on him for a trial on the charges preferred by him, and that the first time a demand was ever made on him for salary was on the date of the written demand." (This was Oct. 10, 1937.) He also testified that the plaintiff never made a demand upon him to return to work, never asked for his equipment back, and never asked to be assigned to regular duty again. The chief of police also testified that the plaintiff's attorney approached him about permitting the plaintiff to resign, so as not to be prosecuted under the indictment. He said he told the attorney that as far as he was concerned it would be satisfactory, but that he would have to see the court about the prosecution part of it, and also talk to the police committee about their part; and that the plaintiff's attorney left it very clear that if the police committee accepted the plaintiff's resignation there would not be any claim against the city for compensation. G. B. Bridges, chairman of the police committee, testified that neither "Mr. Nix nor his counsel ever personally or by letter demanded a trial of me before the police committee during 1937."
Certain ordinances of the City of Atlanta which will be referred to specifically in the opinion were introduced in evidence.
The jury returned a verdict in favor of the City of Atlanta. The plaintiff moved for a new trial on the general grounds, and to the judgment overruling the motion he excepted. *841 It appears from the ordinance of the City of Atlanta, introduced in evidence, as follows: "The chief of police shall have the power to suspend any member of the force any number of days in his discretion for violation of any rule for the government of the police department, until the charge against him is disposed of by the police committee at any regular or called meeting. If the violation is of such a nature as demands an investigation by the committee, he will at once furnish the secretary with the name of the officer suspended, a copy of the charges, and the names of the witnesses to be subpoenaed, that the charges may be fully investigated by the police committee; all such to be reported to the committee at the first called or regular meeting thereafter for their approval." This ordinance, adopted pursuant to the charter of the City of Atlanta, and appears in the approved Code of the City of Atlanta for the year 1924, as sec. 2254. The chief of police of the defendant city therefore had power to suspend the plaintiff, a member of the police force of the city, for any number of days, in his discretion, for a violation of any rule or regulation adopted for the government of the police department. While it does not appear from the record what were the rules for the government of the police department, for a violation of which a member of the police force could be suspended under the above ordinance, in his order suspending the plaintiff it was recited by the chief of police that such suspension was because the plaintiff had, in violation of the criminal law, accepted money from a named person as a reward to influence his conduct in the discharge of his duties by refraining from arresting unknown persons for a violation of the lottery laws of this State, and that he charged the plaintiff with a violation of the rules of the department, which violations constituted a neglect of duty, immoral conduct, conduct unbecoming an officer, and conduct injurious to the peace and public welfare and violation of the penal laws of the State.
No contention is made by the plaintiff that his suspension by the chief of police was not legally authorized. The plaintiff's complaint is that he was not given an immediate trial as required by law on the charges before the police committee of council, and *842 had not been given a trial after demand made therefor by him. It appears from the evidence that while the charges were made by the chief of police on March 26, 1937, when the plaintiff was suspended, the charges were not filed with the police committee until some time in June, 1937. Whether or not the chief of police was justified in holding up the filing of the charges with the committee until this date, and should have filed them earlier than he did, and with the committee which met immediately following the preferring of the charges and before June, 1937, it appears from the plaintiff's evidence that either the chief of police or the chairman of the committee stated that no action would be taken on the charges until the disposition of the case against the plaintiff in the criminal court of Fulton County in which the plaintiff had been indicted on March 12, 1937, on the same charges which had been preferred against him by the chief of police. While there is some evidence that the plaintiff, after the charges were made, demanded of the secretary of the chief of police, who at the time of trial was dead, that the plaintiff be put back to work, and that the secretary stated that the plaintiff would not be put back to work until the charges were disposed of, Chief Hornsby testified that no demand for a trial was ever made to him by the plaintiff or his attorney, and that the first time a demand was ever made on him for salary was on the date of the written demand therefor in October, 1938. He also testified that the plaintiff never made a demand upon him to return to work, or to be assigned to regular duty. Mr. G. D. Bridges, chairman of the police committee, testified that neither the plaintiff nor his counsel had ever demanded of him any trial before the committee during 1937. The plaintiff himself testified that at no time after his suspension did he appear before the police committee of counsel and ask for a trial, and that the only thing he did was to file a paper with the secretary of the chief of police asking for a trial.
The evidence authorizes the inference that the plaintiff had not made any demand on the chief of police to file such charges, and made no demand for trial. It appears that on March 12, 1937, before the charges had been preferred against the plaintiff, the grand jury indicted him on the same charge of bribery on which the chief of police has suspended him. It also appears that the indictment was pending without trial until the second term after the term at which the indictment was obtained and the plaintiff *843 made a demand and he did not become exonerated until the expiration of two terms, which would have been immediately prior to the time when the chief of police filed the charges with the police committee on June 17, 1937. While it might have been the duty of the chief of police, upon suspending the plaintiff and preferring charges against him, to immediately file the charges with the committee so as to secure an early hearing before the committee of such charges, such failure did not render the suspension of the plaintiff any the less legal, pending a hearing before the committee of council.
On June 18, 1937, the plaintiff tendered his resignation and it was accepted. Therefore, the entire period of suspension, particularly when the plaintiff had made no demand for a trial before the committee, as the jury was authorized to find, was legally authorized.
Was the plaintiff entitled to his salary during the period of his legal suspension from duty when in fact he performed no services for the defendant as a police officer of the city? There is presented no law or ordinance authorizing the payment of the salary of a policeman during his suspension under charges of a violation of any rule of the police committee for the government of the police department. There is an ordinance of the city providing that during the absence of a police officer the substitute performing his duties shall receive pay. In the absence of any law or ordinance providing for payment of a suspended policeman's salary, where he is suspended for a violation of the rules of the committee for the government of the police department, such suspended policeman is not entitled to pay during his suspension and while he is not performing the duties of a police officer.
The verdict was authorized, and the court did not err in overruling the motion for new trial.
Judgment affirmed on the main bill of exceptions;cross-bill dismissed. Sutton, J., concurs. Felton, J.,concurs specially. *844
