Summary
referencing police commission's notification of intent to "prefer charges" against police chief and hold a hearing
Summary of this case from Thornton v. StateOpinion
17909.
ARGUED JUNE 9, 1952.
DECIDED JULY 14, 1952. REHEARING DENIED JULY 28, 1952.
Petition for injunction. Before Judge Paschall. Whitfield Superior Court. April 4, 1952.
Isaac C. Adams and Ernest McDonald, for plaintiff in error.
Pittman, Hodge Kinney and H. E. Kinney, contra.
The court correctly construed the charter amendment of the City of Dalton, and properly denied the prayers of the petition for injunction against the mayor and council and other defendants named.
No. 17909. ARGUED JUNE 9, 1952 — DECIDED JULY 14, 1952 — REHEARING DENIED JULY 28, 1952.
Jack Truitt Hayes filed a petition against the City of Dalton, its mayor and council, and in substance alleged: On May 2, 1951, an election was duly held, in which a majority of the voters participating therein voted that the City of Dalton should come under the "Municipal Home Rule Law" (Ga. L. 1951, pp. 116-127, approved February 13, 1951; Code, Ann. Supp., Chapter 69-10). On December 12, 1951, a charter amendment was adopted abolishing the civil service commission, and under the amendment the office of chief of police was made an elective office. The plaintiff was elected chief of police in the election of February 13, 1952, to take office on the first Monday in March. On that date, after the plaintiff had qualified, the mayor stated that the police force personnel existing prior to March 3 would continue in office, and the new chief would nominate three lieutenants therefrom, with the right to nominate new personnel when vacancies occurred. The plaintiff objected, taking the position that under the charter amendment he had the right to nominate a new staff of officers. The plaintiff nominated three men as his choice of lieutenants, and they were approved by the police committee of council. The mayor and council refused to accept the names submitted by the plaintiff for a police force. Of the fourteen names submitted, eight had been officers in the police force whose tenure of office had terminated by the abolition of the civil service commission. The five men that the mayor and council insisted were on the police force were unco-operative and unfriendly to the plaintiff prior to the abolition of the civil service commission. The plaintiff was chief of police of the city, and the five men objected to by the plaintiff were members of the police force under him prior to November 7, 1950. By reason of unjustifiable acts on the part of the five men and the mayor, the plaintiff lost his job as police chief in 1950, without cause. No charges were preferred against him, although he made demand that whatever charges the mayor and governmental officials claimed against him should be published, and that he should be given a copy. He was never granted a hearing by the civil service commission. The five men recognized by the mayor and council as policemen, are directed by them to report for duty in uniform, and they do so report. (These five men are also named as defendants.) This action on the part of the mayor and council results in an independent armed force of men without authority to act as policemen. The unlawful action on the part of the mayor and council has resulted in a police department with only eleven men, besides the plaintiff, three being assigned to duties other than regular police duties. The actions of the mayor and council constitute unjustifiable interference with the duties of the plaintiff, and as a consequence of these acts there is grave danger to the public generally. The plaintiff has no adequate remedy at law against the unlawful and unreasonable interference of the defendants with his duties as chief of police.
The prayers were that the City of Dalton and the mayor and council be enjoined from trying to force the plaintiff to accept the other five defendants as police officers of the city, from interfering with the operation of the police department by giving any order, direction, or request that the five men report for duty as police officers, or wear the uniform of a police officer, or carry arms as a policeman; that the five men named be restrained from doing anything pertaining to the duties of policeman in the City of Dalton; for process, rule nisi; and for general relief.
By amendment, the plaintiff alleged: The charter amendment to the City of Dalton, approved on December 12, 1951, abolished the police department of the city. The new act, creating a new police department, provides that the number of officers thereof should be determined by the city council, and defines the duties of the office of chief of police, created by the amendment.
The City of Dalton and the mayor and council filed a joint answer, in which they denied the material allegations of the petition, and alleged that the tenure of office of the five policemen was specifically continued by section 5 of the amended charter, and that they were members of the police force on March 3, 1952. At a meeting of the civil service commission held on October 17, 1950, the plaintiff was called before the commission and questioned regarding fines and bonds collected by him and not transmitted to the city treasury. At that time the plaintiff admitted that he had been short in moneys belonging to the city. (Extracts from the minutes were set out, showing an investigation by the police commission.) After the meeting, the police commission notified the plaintiff that they would prefer charges against him and give him a hearing, if he wanted it. The plaintiff told the commission that he did not want a hearing, that he preferred to resign, that he did not want the public to know about what he had done. During discussions with the plaintiff over a considerable period of time, the police commission had urged him to control and discipline the men on his force, which he had failed to do. The failure to control and discipline the men was not of such immediate concern as the misappropriation of moneys belonging to the city, and it was under such circumstances that the plaintiff resigned as chief of police on November 7, 1950. (An alleged copy of his letter of resignation is set out.) The defendants admit that they directed the five men objected to by the plaintiff to report in the usual manner to serve as policemen for the city. Under the amendment to the charter, all policemen on the force on March 3, 1952, when the plaintiff became chief, remained as officers until removed as provided for by the amended act. The plaintiff refuses to assign duties to them or to recognize them as policemen.
The defendants prayed for a declaratory judgment answering two questions, as follows: (1) Were the five men objected to by the plaintiff members of the police force on and after March 3, 1952? (2) Does the city have authority to remove the plaintiff from his elective office for insubordination and refusal to assign the men objected to by him, or can the chief of police be removed only as provided in section 6 of Ga. L. 1951, p. 125 (Code, Ann. Supp., § 69-1011)?
After hearing evidence, the court entered an order, in which it was recited that the court did not deem it necessary to pass on the question of a declaratory judgment, requested by the defendants, since the judgment interprets and construes the charter amendment of the City of Dalton. The court's judgment construed section 5, 6, and 9, and held that the plaintiff was not entitled to the relief prayed.
The bill of exceptions assigns error on the judgment denying the injunction, and on exceptions pendente lite to a refusal by the trial court to sustain, or rule upon, the demurrers of the plaintiff to that part of the answer of the defendant relating to a declaratory judgment.
The only substantial issue in this case is whether or not the five men objected to by the plaintiff as policemen were members of the police force of the City of Dalton on March 3, 1952.
The petition alleges, and the answer admits, that there were two elections in the City of Dalton, the first on May 2, 1951, in which a majority of the voters participating voted that the City of Dalton should come under the provisions of the "Municipal Home Rule Law" (Ga. L. 1951, pp. 116-127, Code, Ann. Supp., Chapter 69-10). The second election was held on December 12, 1951, in which a charter amendment was approved by a majority of the qualified voters. The act amended was the Dalton charter amendment approved February 12, 1945 (Ga. L. 1945, p. 593). The voters participating in the charter-amendment election of December 12, 1951, had printed on their ballots, "For approval of amendment to abolish civil service commission," and "Against approval of amendment to abolish civil service commission."
The charter amendment approved by the voters repealed sections 2, 3, 4, 5, 6, 7, 8, 9, 12, 13, 20, 21, and 25 of the act of 1945, and enacted new sections having corresponding numbers. The amendment also repealed sections 14, 17, 22, and 28, without enacting corresponding sections. Section 3 of the amendment to the charter provided for the election of a chief of police on the second Wednesday in February, 1952, for a term beginning the first Monday in March (March 3), 1952, to January 1, 1954. It is necessary to consider only sections 2 and 5 of the charter amendment, to determine whether or not the five men objected to by the plaintiff were members of the police force at the time the new chief of police qualified on the first Monday in March, 1952.
Section 2 of the charter amendment provides: "Be it enacted by the Mayor and Council of the City of Dalton, Georgia, and it is hereby enacted by the authority of the same, that there is hereby created for the City of Dalton a police and fire department, to consist of a chief of police and such other officers, and a fire chief, and such other firemen as may be determined by mayor and council and such mayor and council shall be charged with the administration of the affairs of said departments."
Section 5 of the amendment to the charter provides as follows:
"Be it further enacted that on the first Monday of March, 1952, every member of the police force and every member of the fire department of the City of Dalton, Georgia, shall have equal rank, with the exception of newly elected Chief of Police. At said meeting, the Mayor and Council shall designate from the membership of the Fire Department a fire chief and said fire chief shall, subject to confirmation of the Mayor and Council, designate an assistant fire chief. At said meeting the Chief of Police shall designate, subject to confirmation of the Mayor and Council, three police lieutenants from the police department. It is further provided that all future appointments to the police or fire departments shall be made by the chief of the respective departments, subject to confirmation of the Mayor and Council; provided further that no person shall be appointed to either the police or fire department, who is not a bona fide resident of the City of Dalton."
The trial court in construing the charter amendment, and particularly the provisions of section 5, held that "all policemen who were on duty and on the payroll as policemen on March 3, 1952, would continue as such policemen until removed as provided by law." The trial court properly construed the provisions of section 5 of the amendment. The plaintiff contends, however, that under the provisions of section 2, the police force of the City of Dalton was abolished, and that the new chief, therefore, had the right to name an entirely new police force. This contention is not only untenable under any practical consideration of the question as to whether or not the City of Dalton had a police force on March 3, 1952, when the plaintiff took his office as chief, but it is without any support under the language of section 2 of the amendment. Section 2 of the former act placed the management of the police force of the City of Dalton under a civil service commission. Section 2 of the new act, in effect, transferred the management of the police force from the civil service commission to the mayor and council. At the very moment the civil service commission was abolished, a police force under the mayor and council of the City of Dalton was created. There was no hiatus as to time between the old and the new police force.
The charter amendment provides that it shall become effective when the results of the election are declared by the mayor and council, and entered upon the minutes. Until the results were declared, the police force continued under the civil service commission, and upon a declaration of the results in the manner required, a police force under the mayor and council existed. Whether or not the election providing for the charter amendment was ever declared by the mayor and council and ever entered upon the minutes, the plaintiff has not, and can not, insist that the results were not declared. His office of chief of police, and the election at which he was elected, rest on the proposition that the results of the charter-amendment election were declared by the mayor and council, and properly entered upon the minutes.
When the civil service commission was abolished, the mayor and council were immediately charged with the management and control of the police force. Unquestionably, under this record, there was a police force operating in the City of Dalton, of which these five men were members, on the date the plaintiff took office as chief. The plaintiff recognized this fact by nominating from this force three men as lieutenants. There is no merit in the contention of the plaintiff that the police force of the City of Dalton ceased to exist under the charter amendment, and that the city was without a police force continuously from the date of the amendment up to and including the date the plaintiff qualified as chief of police. The authorities cited and relied upon by the plaintiff are not in point on their facts.
It was not error to refuse to sustain the plaintiff's special demurrers to the answer of the defendants.
While we have ruled on the merits of the issue, and hold that the five men objected to by the plaintiff were members of the police force of the City of Dalton on March 3, 1952, and that the plaintiff had no right to refuse to assign duties to them, such ruling is not to be construed as a holding that the plaintiff's petition would have stated a cause of action for any equitable relief, even if his contentions as to the legal effect of the charter amendment could otherwise have been sustained.
A policeman is a public officer. Davis v. Matthews, 169 Ga. 321 ( 150 S.E. 158); Echols v. Reed, 186 Ga. 105 ( 197 S.E. 244). "The writ of quo warranto may issue to inquire into the right of any person to any public office the duties of which he is in fact discharging, but must be granted at the suit of some person either claiming the office or interested therein." Code, § 64-201. "Quo warranto affords an adequate remedy for the trial of title to a public office, and where title is the sole issue, all equitable jurisdiction is ousted." Stanford v. Lynch, 147 Ga. 518 ( 94 S.E. 1001); Moore v. Dugas, 166 Ga. 493 (5) ( 143 S.E. 591); Hornady v. Goodman, 167 Ga. 555 (3) ( 146 S.E. 173).
The allegations of the petition that the five men contributed to the plaintiff losing his previous employment as Chief of Police of the City of Dalton, and were unco-operative with him during his former term of office, and allegations as to the dangers involved in an unauthorized armed police force amount to no more than "window dressing," and add nothing substantial to the issue between the parties.
The allegations of the petition were insufficient to state a cause of action for equitable relief by injunction, since equity has no jurisdiction where a full, adequate, and complete remedy exists at law. In this case quo warranto would have been an adequate remedy. The cross-action of the defendants and the judgment of the trial court have invoked the rulings here made upon the merits of the cause.
Judgment affirmed. All the Justices concur, except Atkinson, P.J., not participating, and Candler, J., disqualified.