Yarn v. City of Atlanta

47 S.E.2d 556 | Ga. | 1948

Under the charter of the City of Atlanta, the Mayor and General Council by ordinance fix the number of personnel constituting the police department. The Chief of Police assigns the members of the police force to any duties within the police department, and in doing this may require them to work in any area he may designate, and he may limit their right to make arrests or prohibit them from making any arrest whatever. The petition, complaining because Negro policemen may be assigned to areas inhabited by colored people only and disallowing them to arrest white persons, alleged no cause of action, and the court did not err in sustaining the general demurrer and dismissing the action.

No. 16175. APRIL 14, 1948. G. Herbert Yarn filed in the Superior Court of Fulton County, Georgia, a petition against the City of Atlanta, the Mayor and General Council, naming the members thereof, the Chief of Police, and the Personnel Officer, seeking to enjoin the enforcement of a certain resolution adopted on December 1, 1947, and reading as follows: "Whereas a large number of citizens and civic organizations, as well as both daily newspapers, have advocated the use of negro policemen in Atlanta, and whereas it has been shown that over forty Southern cities now have negro police, and that their use will aid in preventing the mounting crime and murder rate in negro sections of Atlanta, and whereas those advocating the use of negro police suggest their use in negro sections only and in such a way as not to create any friction between the races; therefore, be it resolved by the Mayor and General Council that the use of a reasonable number of negro police be approved on a trial basis, with the distinct understanding that they are to be used in negro sections only, and under such rules and regulations and under such conditions as will not create any friction or tension between the races. Be it further resolved that the Personnel Board, with the advice of the Chief, be requested to examine and certify at least eight candidates for such positions, and if found acceptable, to certify them in the usual course for addition to the police force. Favorable, by Police Committee with the approval of the Chief, in accordance with his letter of December 1, 1947." Following the resolution and bearing the same date was a copy of a letter from the Chief of Police, addressed to the Police Committee of the General Council, and reading as follows: "With reference to the employment of negro policemen on a trial basis, and in negro communities in Atlanta, Georgia, I wish to advise that, after discussing it with many Chiefs of Police in other Southern cities, and giving it long and serious consideration from the standpoint of law enforcement only, and what is best for the Atlanta Police Department in the long run, I am of the opinion that they can be successfully employed under the following conditions: 1. That they not be allowed to exercise police power over white people. 2. That a negro police precinct be established. 3. That a delegation be sent to other Southern cities to study their method of operation and regulations. 4. And that they not be given civil service status until their success has been proven. The success or failure would depend on the personnel employed, and regardless how well screened they are, it is inevitable that some `misfits' will be employed. With these stipulations I affix my signature to the resolution, indicating my favorable recommendation and approval." It was alleged that the resolution, while not an ordinance or municipal law, was in force and effect equal thereto; that under the resolution negro policemen would not be allowed to make arrests of white people; that the citizens and taxpayers would be deprived of the protection of the laws, in that negro policemen could not protect their person and property from white persons who might commit a felony thereon, and that the resolution was in violation of various enumerated constitutional rights of the petitioner.

The court sustained a general demurrer to the petition and dismissed the action, and the exception here is to that judgment. Section 75 of the charter of the City of Atlanta (Ga. L. 1874, p. 116) provides that "The police force of the city shall consist of a Chief of Police and such other officers and men as the City Council shall, by ordinance, prescribe." This charter provision specifically requires that the officers and men comprising the police force shall be prescribed by ordinance. In 37 Am. Jur. 667, § 52, it is said: "Where the governing statute or charter requires, either expressly or by necessary implication, that the power be exercised by ordinance, it cannot ordinarily be exercised by resolution." The city council is without charter power to provide for city policemen by a mere resolution not adopted in the manner in which ordinances are adopted. The resolution here involved would be ineffectual for the purpose of increasing the personnel of the city police department since under the above-quoted charter provision this would require a city ordinance. The resolution, however, does not even purport to do more than signify the approval by the Mayor and Council of the employment of negro policemen provided they are to be used in negro sections only. While the petition alleges that the resolution is neither an ordinance nor a law, but that it has the force and effect of an ordinance or law, the plain language of the resolution shows that it is not an ordinance or law and is not intended to be such. It appears to be no more than an expression by the Mayor and General Council of their approval of the employment of negro policemen by the city authority having the power to designate the personnel of the police force. By an act approved March 19, 1943 (Ga. L. 1943, p. 1176), it is provided in § 8 that "The Chief of Police shall have the exclusive power, and it shall be his duty to assign all officers and employees of the Police Department to their respective duties, and to make such changes from time to time as he may deem proper and to the best interest of the Police Department of the City. The power herein conferred shall include the power to assign such members of the Police Department, in such numbers as he may choose, to the various and sundry activities of the Department, such as traffic duty, plain clothes duty, detective bureau, the various watches, and the various territories where such members of the Police Department shall work." It is thus made the duty of the Chief of Police to assign policemen to the performance of any duty within the department and confine them to any territory within the city limits which he may think advisable in the exercise of his judgment and discretion. Therefore, any statement in the resolution of the Mayor and General Council to the effect that negro policemen should be required to work in areas where only colored people reside is no more than a recommendation, since the right thus to assign such policemen is vested by the charter exclusively in the Chief of Police. It is obvious, therefore, that the language of the resolution in this respect constitutes no threat to the petitioner, and any action of the Chief of Police restricting negro policemen to designated areas is authorized by the law and constitutes no ground for legal complaint.

Counsel for the petitioner in his oral argument before this court stated that the petitioner recognized that under the law the city had the right to employ negro policemen, and that the petitioner had no complaint on that account, but that his grounds of complaint were that the resolution should not restrict the negro policemen to sections of the city where only colored people live, but they should be left to work in any section, and the further complaint that negro policemen were not allowed to arrest white people. Upon these two complaints the petitioner asserts that a long list of enumerated constitutional rights of his are imperiled. If it be found that neither of the matters about which he complains is unlawful, then, of course, none of his enumerated rights is violated. The substance of the argument against requiring negro policemen to work only in sections occupied by colored people is that there is no demarcation between the areas occupied by whites and colored. Obviously the petitioner should have no concern about this, since it would be the duty of the Chief of Police to ascertain such lines of demarcation, and if such lines could not be discovered then there could be no restricted areas and the petitioner would be satisfied, since negro policemen would not be restricted to any particular area. The other complaint finds no basis of fact in the resolution. It is entirely silent on whether or not negro policemen would be allowed to arrest a white person. There is incorporated in the petition a letter addressed to the Police Committee of the City Council, signed by the Chief of Police and bearing the same date as the resolution, in which the Chief says that the negro policemen which it is contemplated will be employed will not be allowed to arrest white persons. Many solid reasons could be stated why such a policy would be wise, but the wisdom of the decisions of the Chief of Police in the performance of his lawful duties is not a matter for judicial review. Under the 1943 charter amendment, the Chief of Police is empowered to assign members of his force to any duty which he chooses, and in the exercise of this power he might assign policemen to duties where no arrests are required and might instruct them to make no arrests. There are no allegations in the petition entitling the petitioner to any relief sought, and the court did not err in sustaining the general demurrer and dismissing the action.

Judgment affirmed. All the Justices concur.