Mayor of Macon v. Shaw , 16 Ga. 172 ( 1854 )

By the Court.

Starnes, J.

delivering the opinion.

[1.] The first point made in this case is, that in our State the writ of certiorari does not lie from the decision of a municipal corporation.

Our Constitution provides, that the Superior Courts “ shall have power to correct errors in Inferior Judicatories, by writ of certiorariand the question here is, whether or not the Mayor & City Council of the City of Macon, when they tried the defendant in error, and dismissed him from his office, were acting as an Inferior Judicatory, in the sense in which that term is used in the Constitution.

A Judicatory has been rightly defined to be a Court of Justice. Was this body acting as a Court, when it tried the defendant ? We think so. We think that for the purposes of that trial, it was possessed of all the elements of a Court of Justice; that it exorcised these just as it did when any offender against its ordinances was tried before it; and that when it dismissed Harvey W. Shaw, it pronounced a judgment similar, in character, to that which it rendered in all cases of fine or imprisonment, inflicted upon persons violating the ordinances of the city.

[2.] It is next insisted, that the Judiciary Act of 1799 never contemplated the issuing of this writ to such a corporation, but only to bring up a cause from an Inferior Court; and that 20 days’ notice was necessary.

The Judiciary Act of 1799, it is true, does not refer to the writ, as issuing to such a body; nor, indeed, to any other body or Court, except the Inferior Court proper. The terms of the Act, generally, have relation to the Superior and Inferior-Courts, (meaning, by the latter, our county Court, composed of five Justices,) and the '20 days’ notice prescribed, applies solely to the latter Court — not to other cases, where the constitutional writ of certiorari is issued to other inferior Judicatories.

[8.] We are next called on to determine whether or not the-defendant in error was legally dismissed from office.

There was some irregularity, we think, in the notice which' was given to him. The terms of that notice, as communicated to him, in writing, would seem to have implied that he was to • be put upon trial for the offence of gambling ; and we think he may have very truthfully expressed surprise, when verbally informed, on the day of trial, that he was to meet a different charge, viz: malpractice in office, or neglect of duty. We can-readily see that himself and Counsel might have been in perfect readiness to meet the first charge; and yet, being notified at so late a moment, not have been prepared to meet the other accusation.

But waiving this, let us look to the more important question — was the Marshal properly removed from office ?

The amendment to the charter of the City of Macon, passed February 22d, 1850, authorizes the Mayor and City Council to dismiss the Marshal, for malpractice in office or neglect off duty.

The charge against the Marshal, in this case, was gambling - in the City of Macon. This was proven, and nothing else appears, in the record, as proof of malpractice in office or neglect of duty. Did this constitute malpractice in office ?

The word malpractice cannot be here used, in the technical sense of the term. It is not employed in the sense of mala praxis. That is to say, it does not signify that unskilful practice m a professional person, whereby some other person is injured. Nor does it mean mere neglect of duty; for neglect of' duty is, in so many words, specified in the Act and in the same-sentence. It could only signify some abuse of the duties of the Marshal’s office — as extortion, official malversation or other-.such improper exercise of the office. Of course the crime of gambling was none of these things.

Was it neglect of duty ? In one sense, it undoubtedly was so. In that sense in which it would have been a neglect or violation of any one’s duty. It is clearly the duty of every person to abstain from gambling; and so, of course, it was the duty of this Marshal. But this is not the sense in which the ■term was used. It was plainly employed in the sense of neglect of official duty — his duty as Marshal — not as a good citi.zen. What his official duty was, the ordinances will show. The following are the official duties which, it is supposed, he has violated:

1. It is made his duty, by the charter,, “upon notice, in writing, from the Mayor or any member of the Council, to prosecute all offenders against the laws of the State, for crimes committed in the City of Macon”. And in case of any offence committed in his presence, or within his knowledge, “it shall be his duty to prosecute, without notice”. Here is a clear and definite duty prescribed, a violation or neglect of which would seem to be a sufficient cause for the removal of this officer, if the Mayor and City Council, themselves, had not, by their ordinance, otherwise enacted. We find that in the 5th section of the ordinances, under the head, Marshal and Deputy Marshal, it is declared that it shall be the duty of the Marshal to prosecute all offenders, &c. in the City of Macon. ' And if he :shall “ fail or refuse to do so, when notified so to do, by the Mayor or any member of Council, he shall be removed from his office”. Here the corporation have plainly restricted their right to remove this officer for not prosecuting, to cases where he shall fail or refuse to prosecute, after being notified so to do.

It is not pretended that the defendant in error failed or refused to prosecute on this occasion, after being notified, nor was this the charge. Indeed, it does not appear, by the record, that he did not prosecute. He could not, therefore, for this cause, have been removed.

2. Similar observations may be made in relation to the duty •of the Marshal, as prescribed by the 3d section of the ordinances under this head.

3. - The duty of the Marshal, prescribed by the 8th section of ■the ordinances under the head, Nuisances, as cited by the ■learned Counsel for the plaintiff in error, requiring that officer to “ arrest all persons offending against the public safety, morality or decency”, does not apply to cases of gambling, but to cases of nuisance, or quasi nuisance. This Marshal did not violate that section therefore.

4. Neither does the Tth section, under the head, Marshal and Deputy Marshal, apply to cases of gambling, but to cases of disorder, drunkenness or riot in the streets.

These are all the duties of the Marshal which have been referred to, as having been violated by the defendant in error. And it must be very plain to every one, that the act of gambling, charged and proven against this defendant in error, was not such a neglect of the duties imposed by these ordinances, as authorized the dismissal of the Marshal, according to the charter, unless the act of gambling, in itself, constituted such neglect of duty. That it did constitute neglect of official duty, we cannot think. He had no warning to this effect — no notice, that if, while holding the office, he gambled he would be dismissed — he did not take the office with any such understanding ; and though the act was highly immoral and criminal, yet, it was not a neglect of duty — in the sense in which the Legislature used the terms.

We can but express regret, that we have been compelled, by a sense of our own duty, to take this view of the case before us. It would have given us great pleasure, if we could have sustained the Mayor & City Council of Macon, in the action which they have taken against this defendant in error, who proved himself, in point of moral conduct, so unworthy of the office which he held. We would fain have given them aid in the effort to suppress this abominable vice of gambling in their community. They need such aid, if this record is to be believed. It is a sad report which it makes of the state of morals, as regards this vice, in that flourishing and thriving city. By the record before us, it appears, that not far from one hundred and fifty presentments, for this offence, were made by the Grand Jury, at the time this defendant in error'was presented; and that other persons, besides the Marshal, charged with important official duties, and responsible for the good order and morals of the place, were, at the same time, put under accusation ; and afterwards, punished for this same offence of gambling. And we are sorry, indeed, that we cannot, by our judgment, aid those who, by rebuke and punishment of the defendant in error, have manifested a desire to lessen the frequency of this crime, in a community where it is so prevalent. If we have not done so, it is only because we could not, and yet have regard to those legal principles to which every citizen, however immoral his conduct may have been, has the right to look, as safeguards of his person and property.

So far as we can tell from the record, no objection was made to this proceeding in the Court below, on the ground that no effect could now be given to the judgment of the Court, even if it should find that the Mayor & City Council had committed error in dismissing this Marshal from office, inasmuch as the time for which he was elected has transpired, and he could not be restored to office by the judgment. And as the Court below was not asked to give an opinion on this point, and appears to have given none, we suppose it is right that we should not. The parties seem to have made a case for the Court, and to have been satisfied to take the judgment on the points presented.

Let the judgment be affirmed.,