City of Macon v. Anderson , 155 Ga. 607 ( 1923 )

Hines, J.

(After stating the foregoing facts.)

It is insisted by counsel for the City of Macon that the writ of prohibition must be addressed to a court; and that the’ council of this city, in hearing and deciding charges preferred for the removal of a member of its board of water commissioners, do not constitute such a judicatory as will authorize the grant of the writ of prohibition to restrain this action, if a proper ease for issuing such writ is otherwise made. In this contention we can not concur. The writ of prohibition lies “to arrest illegal proceedings by any court officer, where no other legal remedy or relief is given.” Civil Code (1910), § 5458. It may be putting it somewhat too strong to say that it “issues only to prohibit action by an inferior court” (Seymour v. Almand, 75 Ga. 112); but for the purposes of this case we can accept this statement as law. The contention that the writ of prohibition does not lie in this case is based upon the assumption that the action of the aldermen in this matter is administrative, although it may have some features judicial in their nature. If this assumption were well founded, the deduction therefrom would be well drawn; but the assumption is unfounded. Some of the duties of a municipal council are ministerial, some are legislative, and some are executive; but there are others which are judicial in their nature. Where the duty imposed upon the municipal council, or the members thereof, clearly requires the exercise of judicial powers or quasi-judicial powers, the action in discharging such duties is not-legislative but judicial. Under such circumstances it becomes a special judicatory. Mayor &c. of Macon v. Shaw, 16 Ga. 172; Asbell v. Brunswick, 80 Ga. 503 (5 S. E. 500); Gill v. Brunswick, 118 Ga. 85 (44 S. E. 830); Carr v. Augusta, 124 Ga. 116 (52 S. E. 300); Daniels v. Commissioners of Pilotage, 147 Ga. 295 (93 S. E. 887); City of Atlanta v. Blackman Health Resort, 153 Ga. 499 (11), 508 (113 S. E. 545).

The provision of the charter of Macon under which the aider-men thereof were proceeding in this matter is in part as follows: “ Any member of the boards herein provided for may be removed from office by the mayor of said city, after a public trial and conviction by the council upon written charges preferred, for continued neglect of duty or other conduct unbecoming the station of such member, to be judged of by said council. The vote of two thirds of all the aldermen elected shall be necessary to such conviction and removal.” Acts 1914, pp. 979, 1020, § 77. Action under this provision is-clearly judicial, and provides for public trial by the city council. Before a member of any of the boards of said city can be removed, there must be a judgment of conviction. It prescribes the punishment when a member is convicted. Thus the city council, in trying charges preferred against a member of-one of its boards, becomes a judicial tribunal to which the writ of prohibition lies in a proper case. If the action sought to be-prohibited is judicial in its nature, it may be prevented by the writ of prohibition, though the tribunal or person to whom the writ is addressed is not in name a court or judge. Speed v. Common Council of Detroit, 98 Mich. 360 (57 N. W. 406, 22 L. R. A. 842, 39 Am. St. R. 555); Williamson v. Mingo County Court, 56 W. Va. 38 (48 S. E. 835, 3 Ann. Cas. 355); 22 R. C. L. 12-16, §§ 12, 14, 16. So we are of the opinion that the writ of prohibition will lie to the city council when acting upon charges preferred against a member of one of the boards of the City of Macon and when a proper case is made. It follows that the court did not err in overruling the ground of the demurrer which raises the point that the city council, in hearing these charges against the plaintiff, was not a judicial tribunal to which the writ of prohibition would lie in a proper case.

The writ of prohibition is an available remedy only “ where no other legal remedy or relief is given.” Civil Code (1910), § 5458., If a complete remedy exists by appeal, writ of error, writ of review, certiorari, injunction, mandamus or otherwise, this writ should be denied. Ex parte Warmouth, 17 Wall. (U. S.) 64 (21 L. ed. 543); In re Huguley Mfg. Co., 184 U. S. 297 (22 Sup. Ct. 455, 46 L. ed. 549); Ex parte Oklahoma, 220 U. S. 191 (31 Sup. Ct. 426, 55 L. ed. 431); Hudson v. Preston, 134 Ga. 222 (67 S. E. 800); Cunningham v. Rachaels, 146 Ga. 682 (92 S. E. 208). So where certiorari is an available remedy, this writ will not issue. Heaton v. Hooper, 134 Ga. 577 (68 S. E. 297). The remedy by certiorari is exceeding broad and far-reaching. Certiorari is a constitutional writ, the judges of the superior court being expressly clothed, by the constitution of this State, with “power to correct errors in inferior judicatories.” Civil Code (1910), § 6514. By statute “the writ of certiorari will lie for the correction of errors committed by justices of the peace, corporation courts or councils, or any inferior judicatory, or any person exercising judicial powers.” § 5180. Here is express constitutional and statutory authoritj’- “for the correction of errors committed by . • . corporation courts or councils, or any inferior judicatory or any person exercising judicial powers.” It may seem at first blush that the writ of- certiorari furnishes a remedy full and comprehensive enough to correct all errors committed by justices of the peace, municipal courts or councils, any inferior judicatory, or any person exercising judicial powers, whether within or without the limits of their respective lawful jurisdictions; and that for this reason the writ of prohibition will lie to these tribunals, if at all, only .in rare and isolated cases. But, if this were so, the writ of prohibition, which," like certiorari, is a constitutional writ (Civil Code (1910), § 6514), would be practically unavailable as a remedy' to prevent these tribunals from acting beyond or in excess of their jurisdiction. Both writs must stand, although'one has a narrow, and the other a broad, range of action.

A • brief review of the cases decided by this court upon this subject will show that the writ of prohibition lies in all eases where there is láck of jurisdiction of the subject-matter, or where the act complained of was in excess of the jurisdiction of the court or tribunal.. In South Carolina R. Co. v. Ells, 40 Ga. 87, it was held that" justices of the peace, upon the opinion of twelve freeholders of the county, had no jurisdiction to abate a nuisance in a city; and that a writ of prohibition was the proper remedy to restrain them. In Doughty v. Walker, 54 Ga. 595, it was held that the office of the writ of prohibition in this State is to restrain subordinate courts and inferior judicial tribunals' from exceeding their jurisdiction, so that each tribunal shall confine itself to the exercise of those poweis with which, under the constitution and laws of the State, it has been entrusted. In that case the writ issued to restrain a justice of'the peace from setting aside a judgment rendered by him, on the ground that he had no authority to set it aside; and’it was ruled that the writ of prohibition was the appropriate remedy to restrain him. This ruling was followed in Mills v. Bell, 136 Ga. 687 (71 S. E. 1120). Prohibition is the proper remedy to prevent 'an' Ordinary from proJ ceeding further, pending an appeal from that court to the superior court. Fite v. Black, 85 Ga. 413 (11 S. E. 782). This decision was based upon the fact that the ordinary had lost jurisdiction over the case by its appeal to the superior court. It is true that this court, in rendering the decision in that case, said: ‘ “ These executors, pending their appeals in the superior court, could resort to no remedy save this writ, to prevent the ordinary from treating his own judgment as final and going on to execute the same as he was proceeding to do;” but the true basis of the puling in that case was lack of jurisdiction over the subject-matter after the appeal had been taken to the superior court.

“ The refusal to surrender to an arresting officer, upon a warrant lawfully issued, one accused of crime can not be déalt with as a contempt of court by a justice of the peace who has done nothing more than issue the warrantand where “ for such a fefusal a justice of the peace, acting under authority supposed to have been conferred upon him as the presiding officer of the court created by the constitution, issues a rule for contempt, prohibition will lie to enjoin its further progress.” Ormond v. Ball, 120 Ga. 916 (48 S. E. 383). Here the right to the writ of prohibition is based upon lack of jurisdiction in the magistrate to attach the officer for contempt of his court. In McGriff v. State, 135 Ga. 359 (69 S. E. 115), it was held that “where one under indictment for murder was taken in custody and placed in jail to await •his trial, it was not lawful for the ordinary of the county, upon petition .of the mother of the prisoner, . . to appoint a commission to examine into the question of sanity and make a return to him, and in case they should find him insane to direct the person to be committed to the State sanitarium for insane persons and that the writ of prohibition applied for by the solicitor-general was the proper remedy to restrain such a proceeding. Where the ordinary, upon the affidavit of certain freeholders, was. taking steps, under the Civil Code (1910), § 5333, to cause a-jury to be summoned and to try the question whether a power-dam across a stream was a public nuisance, he was without power to proceed summarily to abate such dam as a public nuisance, and there was ho error in the grant by the superior court of the writ of prohibition to prevent him from proceeding in this matter. Meador v. Central Georgia Power Co., 137 Ga. 196 (73 S. E. 3); Central Georgia Power Co. v. Ham, 139 Ga. 569 (77 S. E. 396).

From the above cases, it will appear that this court has decided that whenever an inferior tribunal presumes to act when it has no jurisdiction of the subject-matter of the proceeding, or if it has jurisdiction thereof but exceeds its legitimate powers in the particular matter, the writ of prohibition will lie, and the remedy by certiorari is not adequate. On this subject se§ 33 Cyc. 605 (3). In the cases where this court held that certiorari was an adequate remedy, the tribunals I sought- to be restrained by this writ had jurisdiction of the subject-matter involved. There is nothing to the contrary in Hart v. Taylor, 61 Ga. 156, in which this court said: “All that we rule now is, that the writ of prohibition, which ought never to be granted except upon a ‘strong case clearly made out, of want of jurisdiction in the court sought to be prohibited, should not have been granted in this ease.” Here this court recognized clearly the want of jurisdiction as ground for issuing this writ. Lack of such jurisdiction makes the writ of prohibition an appropriate remedy. In cases of lack of jurisdiction, the existence of any other remedy by appeal or otherwise, the granting or refusal of the writ of prohibition is, at most, discretionary. In re Rice, 155 U. S. 396 (15 Sup. Ct. 149, 39 L. ed. 198); Ex parte Oklahoma, 220 U. S. 191 (31 Sup. Ct. 426, 55 L. ed. 431). So we are of the opinion that certiorari is not as full and adequate a remedy as the writ of prohibition, when the tribunal sought to be restrained is clearly without jurisdiction of the subject-matter or is acting in excess of its jurisdiction.

The plaintiff attacks the constitutionality of the above provision of the charter of Macon, under which the city council was proceeding to try him upon-the charges preferred. One ground of this attack is that said provision violates the due-process clauses of the State and Federal constitutions, because it does not provide for notice to those to be triéd. thereunder, and does not give to such an opportunity to be' heard. The trial judge took this view, and held this provision of the city charter unconstitutional. In so holding, we think he erred. It is true that notice and an opportunity to be heard are fundamental requirements of due process. Riley v. Wright, 151 Ga. 609 (107 S. E. 857); Arthur v. State, 146 Ga. 827 (92 S. E. 637); Mott v. State Board of Optometry, 148 Ga. 55 (95 S. E. 867); City of Jackson v. Kinard, 154 Ga. 692 (115 S. E. 69). But this provision of the city charter does not -violate these clauses of the State and Federal constitutions. It contains a grant of power, which need not be accompanied with provision for due process. The legislature can leave to the city council the enactment of an ordinance providing for notice to the accused .and an- opportunity to be heard; and such an ordinance will-supply due process. City of Sandersville v. Bell, 146 Ga. 737 (92 S. E. 218); City of Jackson v. Kinard, supra, So it is unnecessary to determine whether this provision of the city charter ex vi termini does not provide for notice and an opportunity to be heard. On this question see 2 McQuillin, Mun. Cor. 1210, § 552.

The plaintiff further contends that the clause in said provision, to wit, “ or other -conduct unbecoming the station of such meihber,” is -unconstitutional and void, for that -the same is too vague, indefinite, and' evasive to form a basis of charges criminal or quasi-criminal nature. The plaintiff does not state in his petition whether this clause violates the State or 'Féderal constitution, nor does he name any provision of either, constitution which this clause violates. The question of the constitutionality of .a clause in a legislative act is not - raised by a petition in which no particular clause or part of the constitution is designated. Dobbs v. Bullard, 149 Ga. 553 (101 S. E. 122).

The vital question in this case is this: Have the city council of Macon the jurisdiction and authority to try the plaintiff upon the charge preferred against him? The charge against him is-embezzlement or larceny of the funds, not of the city, but of a lodge of which-he was secretary, during his-term of office as a member of the-board of water commissioners and a member of the Bacon Field Park Commission. The answfer to the above question depends upon the proper construction of the language of the provision of the city charter which we have'been1 considering, and which is set out above. A member of said boards, under said provision, can only be' removed “ for continued neglect of duty, or other conduct unbecoming- the station of such member.” The plaintiff' contends that he can be removed only for unbecoming conduct in discharging the functions of his office. The trial judge was of the opinion that the unbecoming conduct referred to in- this clause of the city charter was official misconduct, and not the conduct of the member in unofficial matters. There is force in this contention; but we do not believe that this is- the proper construction of- this language, which is broad enough to cover both personal and official conduct unbecoming the station of a member of these boards. The judge cites Mayor &c. of Macon v. Shaw, 16 Ga. 172, to support the plaintiff’s contention. In that case the proceeding was to remove the city marshal for gambling; and the proceeding was instituted under an amendment to the charter of Macon, which authorized the mayor and city council to dismiss the city marshal- for malpractice in office or neglect of duty. This court held that gambling was neither ’ malpractice in office nor neglect of duty; and that, for this reason, the then city marshal of Macon could not be removed under the above amendment to the charter of that city. Hnder a statute fixing the term of a policeman during good behavior, a dismissal because he falsely said of another member of the force that the latter had been found in bed with another man’s wife, and requested that the statement be published, was judicially approved. People v. Police Comrs., 41 Hun, 389. In Queen v. Atlanta, 59 Ga. 318, this court held that a policeman could be removed from office for seduction, under a charter provision which provided that “ for a failure to perform any duty required by law, or the city ordinances, they may be suspended or removed from office by the board of police commissioners.” In Mayor &c. of Brunswick v. Fahm, 60 Ga. 109, the clerk and treasurer of Brunswick was put in jail under a charge of forgery, and he was indicted by the grand jury for. that offense. Afterwards he was acquitted. This court held that the mayor and council were justified in dismissing him, and that he was not entitled to recover his salary. In Tibbs v. Atlanta, 125 Ga. 18 (53 S. E. 811), it was held that a policeman could be discharged by the police commissioners for conduct prior to his employment and having no immediate relation to the duties of the office of policeman. Under the rulings in the above cases, officers may be removed for conduct having no immediate relation to the duties of their offices; and we think 'these rulings are right in principle. By the common law municipalities could remove officers for misbehaviors not immediately related to their duties as officers, but making them infamous and unfit to execute any public function. It is true that misbehaviors which made such officers infamous and unfit to perform their public functions had first to be established by a conviction by a jury according to the law of the land. Rex v. Richardson, 1 Burr, 517. Such conviction is not now necessary, under a charter provision which authorizes the trial of officials for conduct unbecoming their station and offices.

So we reach the conclusion that a member of any board of the City of Macon can be removed from office upon his conviction, after public trial, by the city council for embezzlement o,r larceny after trust, although such offense has no immediate relation to the duties of his office, the same making him infamous and unfit to execute or discharge public functions. Accordingly the court below erred in not sustaining the demurrer to the petition of- the plaintiff, and in granting the writ of prohibition restraining the city council from trying plaintiff on the charges preferred.

Judgment reversed.

All the Justices concur.