Opinion
37065.
DECIDED MARCH 19, 1958. REHEARING DENIED APRIL 3, 1958.
Petition for declaratory judgment. Bibb Superior Court. Before Judge Long. November 30, 1957.
Chappell Barfield, for plaintiff in error.
Adams McDonald, Cravey Pentecost, contra.
The judge erred in sustaining the general demurrer to the petition seeking a declaratory judgment.
DECIDED MARCH 19, 1958 — REHEARING DENIED APRIL 3, 1958.
James R. Hamrick filed in the Superior Court of Bibb County, a petition seeking a declaratory judgment, and naming as defendants the following: Marvin Griffin, Eugene Cook, Zack D. Cravey, L. B. McCallum and Carlus M. Gay, as members of the Board of Commissioners of the Peace Officers' Annuity and Benefit Fund of the State of Georgia.
The petition alleged in part that: the petitioner's appointment by the State Board of Probation pursuant to Code (Ann.) § 27-2706, became effective July 1, 1956, and he has been required to and has devoted full time to the duties of his office since the date of his appointment; the Peace Officers' Annuity and Benefit Fund provided for in Code (Ann.) § 78-901 through § 78-921, was established for the benefit of peace officers serving the State of Georgia and its subdivisions; therein, in § 78-901, the term "peace officer" was defined to "mean any peace officer who is employed by the State of Georgia or any political subdivision thereof, who is required by the terms of his employment as such peace officer, whether such employment exists by virtue of election or appointment, to give his full time to his job as such peace officer"; the petitioner, by virtue of his appointment as a probation officer, is a peace officer entitled to all the benefits of the Peace Officers' Annuity and Benefit Fund; he is required by the terms of his employment and by Code (Ann.) Ch. 27-27, and does give his full time to the preservation of public order, the protection of life and property, and the detection of crime in the State of Georgia, and the Dublin Judicial Circuit; his duties are such as bring him clearly within the meaning and purview of the term "peace officer" as used in Code (Ann.) Ch. 78-9; said duties, as imposed by authority of Code (Ann.) §§ 27-2709, 27-2710, consist of, but are not necessarily limited to, the following: (a) general supervision of the acts and conduct of the probationers in the Dublin Judicial Circuit; (b) investigation of all cases referred to him by the court and recommendations to the court regarding the sentence to be imposed; (c) keeping informed concerning the conduct, habits, associates, employment and whereabouts of all probationers subject to his supervision; (d) the use of all practicable and proper methods to aid and encourage persons on probation and to bring about improvements in their conduct and condition to the end that they live as law-abiding citizens and keep the peace; (e) seeing to it that the probationer abides by the following conditions set forth in § 27-2711: (1) avoid injurious and vicious habits; (2) avoid persons or places of disreputable or harmful character; (3) report to the probation officer as directed; (4) permit such officer to visit him at his home or elsewhere; (5) work faithfully at suitable employment insofar as may be possible; (6) remain within a specified location; (7) make reparation or restitution to any aggrieved person for the damage or loss caused by his offense in an amount to be determined by the court; (8) support his legal dependents to the best of his ability; petitioner by virtue of Code (Ann.) § 27-2713, has the power and duty to arrest without a warrant any probationer whom he believes to have violated his probation in a material respect; he is frequently called upon in the course of his employment to make such arrests, and to keep arrested probationers in his custody until such time as they can be incarcerated; on occasions petitioner has met with violent resistance or flight on the part of a person his duty required him to place under arrest so that he is subject to all the hazards and perils which a peace officer customarily encounters; petitioner performs all duties required by law of a circuit probation officer and is eligible to membership and is a member in good standing of the Peace Officers' Association of Georgia; petitioner properly applied for membership in said fund within the time and in the manner provided by § 78-908 by submitting his application on a blank furnished him by the board; the Board of Commissioners of the Peace Officers' Annuity and Benefit Fund denied his application for membership; an actual justiciable controversy exists between petitioner and the defendants named herein concerning the rights of petitioner in the Peace Officers' Annuity and Benefit Fund of the State of Georgia, and his right to participate therein, and the ends of justice require that a declaration of petitioner's rights be made.
The defendants filed a general demurrer, which the judge sustained. It is to this ruling exception is taken.
The exception being to the sustaining of a general demurrer to the petition requesting a declaratory judgment, the issue to be here decided is whether the petition set forth a justiciable controversy as provided by the Declaratory Judgment Act.
It is not so apparent from the averments of the petition compared with the requirements of the act under which the plaintiff seeks to qualify that he is not a peace officer as to exclude his right to have the issue passed upon and his status adjudicated by declaratory judgment. McCallum v. Quarles, 97 Ga. App. 178 ( 102 S.E.2d 691); Georgia Casualty c. Co. v. Turner, 86 Ga. App. 418, 422 ( 71 S.E.2d 773); Parks v. Jones, 88 Ga. App. 188 ( 76 S.E.2d 449); Darling v. Jones, 88 Ga. App. 812 ( 78 S.E.2d 94).
The judge erred in sustaining the general demurrer to the petition.
The above ruling is not to be construed as determining whether or not the plaintiff is a peace officer and entitled to the benefits of the Peace Officers' Annuity and Benefit Fund.
Judgment reversed. Felton, C. J., and Nichols, J., concur.