Summary
In Vandiver v. Manning, 215 Ga. 874 (114 S.E.2d 121), this court held (one Justice dissenting) that an adult probation officer was such a peace officer.
Summary of this case from Fleming v. MaddoxOpinion
20838.
ARGUED MARCH 16, 1960.
DECIDED APRIL 4, 1960. REHEARING DENIED APRIL 27, 1960.
Mandamus. Fulton Superior Court. Before Judge Tanksley. December 29, 1959.
Cravey Pentecost, Zack D. Cravey, Jr., Adams McDonald, Ernest McDonald, for plaintiffs in error.
Sheats, Parker Webb, Paul Webb, Jr., contra.
The trial judge did not err in requiring the reinstatement of the plaintiff as a member of the Peace Officers' Annuity Benefit Fund.
ARGUED MARCH 16, 1960 — DECIDED APRIL 4, 1960 — REHEARING DENIED APRIL 27, 1960.
Simeon N. Manning brought a petition for mandamus against the Board of Commissioners of the Peace Officers' Annuity Benefit Fund of Georgia, the members of the board, and the secretary-treasurer of the Peace Officers' Annuity Benefit Fund. He alleged that he was employed and devoted his full time as an Adult County Probation Officer of Fulton County, pursuant to the provisions of Ga. L. 1913, pp. 112-114, and Ga. L. 1956, pp. 27-36, and stated the duties of his office. He asserted that, under the authority given to him by law, in 1958 he and his assistants made 2326 arrests of persons believed to have violated the terms of their probation. He contends that he is a "peace officer" within the meaning of the act establishing a Peace Officers' Annuity Benefit Fund. Ga. L. 1950, pp. 50-58, as amended, Ga. L. 1951, pp. 472-475; Ga. L. 1956, pp. 280-292; Ga. L. 1958, pp. 341-351. He further alleged that: He applied for membership in the fund on or about March 21, 1952, and was admitted to membership. Thereafter, on March 8, 1957, he was notified that his membership was terminated, and he was tendered the payments he had made to the fund. He refused this tender, and has made a continuing tender of dues to the fund.
The writ of mandamus was sought to require the defendants to approve the plaintiff's application for membership in the fund and to reinstate him as a member of the fund, such membership to be retroactive to the time he originally applied for membership.
The defendants filed their general demurrers and an answer. In the answer they denied that the plaintiff had ever been a duly constituted member of the Peace Officers' Annuity Benefit Fund of Georgia. They admitted that the plaintiff had paid some dues to the fund, but asserted that, when it came to the attention of the board, on or about May 8, 1957, he was paying dues to the fund and claiming membership by virtue of the fact that he is an Adult Probation Officer of Fulton County, they determined that he was not a "peace officer" as contemplated by the laws governing the fund, and thereupon so advised him, and returned all dues received from him.
The plaintiff amended his petition by alleging that in every probation there is an implied, if not specified, condition that the probationer will not violate any laws of the State, and it is one of the duties of the plaintiff's employment to keep a constant supervisory watch over the probationers subject to his supervision, and to arrest any probationer who violates any of the laws of the State, and this supervision requires the constant investigation of criminal, and alleged criminal, acts on the part of the probationers assigned to him.
The defendants' renewed general demurrers were overruled by the trial judge. On the hearing the plaintiff introduced testimony in regard to the duties of his office. The parties stipulated as follows: The plaintiff made application for membership in the fund on or about March 21, 1952, and a certificate of membership was issued to him by the secretary-treasurer, and the plaintiff thereafter paid all dues and assessments required of members until May 8, 1957. By the act of 1956 (Ga. L. 1956, pp. 280-292) all members of the fund were required to list with the board the periods of time for which they would seek credit toward retirement. The plaintiff complied with this requirement, and thereafter, it having come to the attention of the defendants that the plaintiff was claiming membership by virtue of serving as an Adult County Probation Officer of Fulton County, they determined that he was not a peace officer as defined by the laws governing the operation of the fund, and tendered to him the dues that he had paid. The plaintiff refused to accept a tender of the dues paid by him, and has made a continuing tender of dues to the fund. The plaintiff is required to devote his full time to the duties of his office as Adult County Probation Officer, and his duties are those described in Ga. L. 1956, pp. 27-36, and such other duties as may be prescribed by the Director of Probation pursuant to such law. Prior to 1956, his duties were set forth in Ga. L. 1913, pp. 112-114. The plaintiff has been employed by Fulton County as an Adult Probation Officer from September, 1936, to the present date, except for a period of two years from June, 1943, to June, 1945.
The trial judge granted a rule absolute against the defendants, commanding them to reinstate the plaintiff as a member of the fund, his membership to be retroactive to the time he was originally accepted as a member, upon the plaintiff paying all accrued dues.
The defendants except to the overruling of their renewed general demurrers, and to the judgment making the mandamus absolute. The parties will be referred to in the opinion as they appeared in the trial court.
On March 21, 1952, the date the plaintiff originally made application for membership in the Peace Officers' Annuity Benefit Fund, the term "peace officer" as used in the act creating the fund, as then amended, was defined as follows: "The term `peace officer,' as used in this act, shall mean all peace officers who are employed by the State of Georgia, or any subdivision, or municipality thereof, who are required by the term of their employment, whether by election or appointment, to give their full time to the preservation of public order, or the protection of life and property, or the detection of crime in the State of Georgia, or any political subdivision or municipality thereof, and shall include all convict guards and wardens of county or State camps. . ." Ga. L. 1951, pp. 472, 473-474.
The determination of whether or not the plaintiff was a peace officer as thus defined when he made application for membership must be made by reference to the duties imposed on him by law at that time. The law then in effect was the act of 1913 (Ga. L. 1913, pp. 112, 114), as amended by the act of 1933 (Ga. L. 1933, p. 266) (Code of 1933, §§ 27-2703 — 27-2706), as further amended by the act of 1941 (Ga. L. 1941, p. 481). Among the duties specified were the following: "First, to investigate, in his discretion, the case of any person brought before the court, to ascertain the history and previous conduct of the person arrested, and such other facts as may show whether he or she may properly be released as a probationer under the provisions of this law, and to accomplish this, the probation officer shall have opportunity to confer with the accused. Second, to preserve complete records of all cases investigated, including descriptions sufficient for identification, with the findings of the court, its action in the case, the subsequent history of the probationer, in such form as may be prescribed under the provisions of this law. . . . Third, to take charge of all persons placed on probation under this law, to instruct probationers in their duty under the orders of court, enforce the terms and conditions of same, keep regular books of accounts showing any receipts and disbursements of money received by him under the terms of said orders of court. In so far as necessary to the performance of their official duties, probation officers shall have all the powers of police officers. Every person placed on probation under the provisions of this law shall, during the term of his release without the confines of the chain gang, jail or other place of detention, observe all rules prescribed for his conduct by the court, report to the probation officer as directed, and maintain a correct life. In case of failure to meet any of these requirements, and at any time prior to the final disposition of the case of any probationer in the custody of a probation officer, the officer may bring him without warrant before the court or the court may issue a warrant directing that he be arrested and brought before it." Code of 1933. §§ 27-2704, 27-2705.
In the present case, no consideration is necessary of the evidence introduced in behalf of the plaintiff, except to observe that the evidence shows that he performed the duties which he was authorized to perform under the law. In determining the question of whether or not the plaintiff was a peace officer authorizing his membership in the fund, the authority of the plaintiff to act as a peace officer "must be found in some public law." Board of Commrs. of Peace Officers Annuity Benefit Fund v. Clay, 214 Ga. 70, 73 ( 102 S.E.2d 575). In that case the definition of a peace officer was amplified in the following language (at pages 72, 73): "To preserve the public peace means to secure that quiet and freedom from disturbance which is guaranteed by the law. . . The rights of `life' and `property' embrace every right of the citizen which the law protects, and includes all liberties, whether personal, civil or political. . . The detection of crime means the investigation and discovery of violators of all public laws." In Vandiver v. Endicott, 215 Ga. 250, 251 ( 109 S.E.2d 775), it was said: "`In general, it may be said that a peace officer is a person designated by public authority to keep the peace and arrest persons guilty or suspected of crime.' 4 Am. Jur. 18, § 24; Restatement of Torts 246, § 114. He is a conservator of the peace, which term is synonymous with the term `peace officer.' Ex parte Levy, 204 Ark. 657 ( 163 S.W.2d 529)."
The General Assembly of Georgia has determined that it is in the interest of the public good and the welfare of persons convicted of violations of the public laws that in some instances the violators be allowed to serve their sentences outside of a place of detention, but under the strict supervision of probation officers. This provision for probation offers an opportunity for rehabilitation, which will result in an advancement of the welfare of both the person rehabilitated and society generally. On the other hand, it contains an element of danger to the peace of society, in that persons with known criminal tendencies are allowed to remain unconfined, with the possibility of a repetition of criminal acts by them. In this area the probation officer has important duties to perform, first in investigating persons convicted of crime to determine whether their past records justify the conclusion that they might safely be placed on probation, then in supervising their conduct while on probation, and in arresting them and bringing them back before the court in case they violate the terms of their probation. While the jurisdiction of probation officers to arrest offenders is limited to one class of persons, the probationers under their supervision, their power of arrest is broader with regard to that class of persons than is the general power of arrest by officers (Code § 27-207), since the probation officer may arrest a probationer without a warrant for the alleged violation of any condition of his probation, which might be the commission of a felony or misdemeanor, or a mere violation of some rule prescribed for his conduct, even though such violation of the conditions of his probation was not committed in the probation officer's presence. The probation officer deals with a group of persons known to have criminal tendencies, since they have been convicted of violations of law, and his arrests are made of persons already convicted of crime, whereas an officer such as a policeman frequently arrests persons only suspected of criminal violations. We therefore conclude that the plaintiff as Adult County Probation Officer of Fulton County should be termed a "peace officer" and eligible to membership in the fund established for peace officers. See Fishbein v. State, 125 N.Y. So.2d 845 ( 282 App. Div. 600, 282 App. Div. 1093).
This ruling is not in conflict with those made in McCallum v. Almand, 213 Ga. 701 ( 100 S.E.2d 924), wherein it was held that the applicant, who was a county commissioner and county policeman, was not eligible for membership in the peace officers' fund. In that case it was pointed out that the applicant devoted his full time to his duties as county commissioner, that he made no arrests, and received no compensation as county policeman. In Board of Commrs. of Peace Officers Annuity Benefit Fund v. Clay, 214 Ga. 70, supra, it was held that certain motor-carrier inspectors were not peace officers. In that case it was pointed out that there was nothing in the law that authorized the inspectors to make an arrest other than as private citizens for offenses committed in their presence. In Vandiver v. Endicott, 215 Ga. 250, supra, it was said: "The general allegations of the petition to the effect that as fire marshal he is a `peace officer' engaged in the enforcement of the laws of Georgia and the city ordinances of the City of Atlanta are mere conclusions, which must yield to the specific allegations of his petition contained in his exhibits, which show that he is primarily engaged in fire prevention and, fire safety and in enforcing the laws and ordinances relating thereto." None of those cases is authority for a ruling that a probation officer, supervising probationers convicted of a wide variety of offenses against the public laws, and with authority to arrest, without warrant, such probationers as may violate the terms of their probation, is not a peace officer.
The trial court properly overruled the general demurrers to the petition for mandamus, and entered the mandamus absolute requiring the defendants to reinstate the plaintiff as a member of the Peace Officers' Annuity Benefit Fund, upon his payment of accrued dues.
Judgment affirmed. All the Justices concur, except Mobley, J., dissenting.
The plaintiff, an Adult Probation Officer of Fulton County, is not a peace officer within the meaning of that term as used in the act (Ga. L. 1950, pp. 50-58; Ga. L. 1951, pp. 472-475; Ga. L. 1956, p. 280-292; Ga. L. 1958, pp. 341-351) creating the Peace Officers' Annuity Benefit Fund. There is no distinction between this case and that of Vandiver v. Endicott, 215 Ga. 250 ( 109 S.E.2d 775), in which, in a unanimous opinion of this court, it was held that a fire marshal of the city of Atlanta, whose duties consisted primarily of "detecting fire hazards and in eliminating them, in enforcing the laws and ordinances relating to fire prevention and fire safety, and in making arrests and prosecuting those suspected of arson and the violation of other laws and ordinances relating to fire protection, fire prevention, fire safety, fire fighting, etc.," was not a peace officer within the meaning of the act creating the fund. In my opinion, this case is controlled by the full-bench decision in Vandiver v. Endicott, 215 Ga. 250, supra.