Shaw v. Mayor of Macon

21 Ga. 280 | Ga. | 1857

By the Court.

Benning, J.

delivering the opinion.

By the act of February 22d, 1S50, amendatory of the charter of the city of Macon, it is provided that the Marshal of that city shall “hold his office for twelve months.”

[1.] He, therefore, “is not subject to be removed from office at any time by a vote of a majority of Council;” and consequently, a recital in his official bond that he is subject to be so removed, is not true.

Therefore it was an error in the Court below to allow the official bond of the Marshal, containing such a recital, to be read in evidence.

[2.] The presentment not having passed into judgment, was no evidence at all of its own truth. It was manifestly, therefore, not admissible against the party presented, as evidence to show him to be guilty of the matter charged against him in the presentment.

The charter of the city of Macon passed in 1847, and also the act of 1852, amendatory of the charter, give to the Mayor and Council the power to dismiss the Marshal from office for malpractice in office, or neglect of duty.

The 31st section of the charter is in these words-: “That it sháll be the duty of the Marshal of the city, upon notice in writing from the Mayor, or any member of Council, to prosecute all the offenders against the laws of this State for crimes committed within the limits of the city of Macon. And in case any offence shall be committed within the presence of said Marshal, or within his knowledge, it shall be his duty to prosecute without such notice.”

It is to be the duty of the Marshal to prosecute for offences committed “within his presence,” whether notified to do so or not. And if he does not do so, the not doing so is, of course, to be a case of “neglect of duty.”

There is no law that is in conflict with the part of this section that has this effect It is not claimed that there is.

But it is claimed, that there is an ordinance of the Council, that is in conflict with this part of the section. That ordinance is as follows: “It shall be the duty of the Marshal, to prosecute before the Superior Court all offenders against the statute laws of this State, for crimes committed within the jurisdiction of the city of Macon. And if the Marshal shall fail or refuse so to prosecute, when notified so to do by the Mayor, he shall be removed from his office, unless a satisfactory excuse be given.”

What the charter, then says, is, that the Marshal may be dismissed from offi.ce for neglect of duty; and that it is his duty to prosecute for offences committed in his presence, whether notified to do so or not; and this is saying that he may be dismissed from office for failing to prosecute for offences committed in his presence, although he may not have been notified to prosecute for them.

What the ordinance says is, that he shall be dismissed from office, if he fails to prosecute when notified to prosecute, unless a satisfactory excuse be given.

Now what the ordinance says, is certainly not necessarily repugnant in letter to what the charter says. Nor is it so in spirit. It may be quite proper that a Marshal shall be removed from office in every case in which he fails or refuses to do his duty after a special notification to him to do it; and yet, also, be equally proper that he shall be removed from office in some cases in which he fails or refuses to do his duty, even though there has not been any notification to him to do it.

But unless what the ordinance says was necessarily repugnant to what the charter says, we ought not to hold that it was intended by its authors, the Mayor and Council, to be repugnant to what the charter says ; for it is not to be presumed lightly, that any legislative body intends to curtail its own powers.

And then is it clear that this legislative body, the Mayor and Council, can curtail its powers, even when it intends to curtail them ? The Legislature of to-day cannot pass a law derogatory to the powers of the legislature of to-morrow. Those powers come from too high a source, the people — so the powers of the Mayor and Council come from a higher source than themselves — come from the Legislature — a body which is as much above the Mayor and Council as the people are above it.

[3.] We do not think that this ordinance is in conflict with the part of the charter in question, and therefore we must think that that part stands fully operative.

It follows that, in our opinion, the Court below was right in refusing the fourth request to charge, of the plaintiff.

The second and fifth requests involve what was disposed of in the disposition made of the first two exceptions.

The third request was right, if the decision of this.Court made in this case when the case was last before it was right; and we have not been asked to overrule that decision ; nor do we see any reason to overrule it.

Thus it seems, that in our view, some of the exceptions are good. Therefore we think that there should be a new trial.

Judgment reversed.