Bunch v. City of Macon

115 S.E. 40, 29 Ga. App. 290, 1922 Ga. App. LEXIS 256

• Court: Court of Appeals of Georgia
• Decided: December 13, 1922
• Docket: 13543
• Status: Published

Opinions

Broyles, C. J.

(After stating the foregoing facts.) The plaintiff was appointed a member of the police force of the City of Macon in 1918, and at that time the control and regulation of the city police department were under a civil-service commission created by an act of the General Assembly of Georgia (Ga. L. 1914, p. 1021). In 1916 the legislature amended that act (Ga. L. 1916, p. 779), and this amendatory act provided, among other things, that “no member of the police or fire department of said city shall be dismissed or suspended for more than ten days, with-first having had a trial by the Board of Civil Service Commissioners, which trial shall be public, and all witnesses who may be sworn for or against the accused shall be required to testify in his presence. It shall require a majority vote of said Civil Service Commission to discharge a fireman or policeman, or to suspend him for more than ten days without pay.” In 1920 this civil-service commission was abolished (Ga. L. 1920, p. 1142), and control of the police force of the city was placed in a police committee of the council. However, this last act also contained the provision, that no police officer could be discharged or suspended without trial. Thus, we see that the selection, retention, suspension, and removal of the plaintiff, as a member of the police force of the City of Macon, was regulated by statute. And by the express provisions of these statutes the plaintiff, after his appointment to the police force, was entitled to continue as a member thereof until suspended or removed for cause in the manner provided and after due notice and trial. The record shows that no such trial was ever had, although the plaintiff repeatedly asked for one. In this connection Mr. Urquhart, vice-chairman of the civil-service commission, testified that the plaintiff was never tried because no charges were ever preferred against him; that the board refused to make charges; that he was never dismissed or suspended; that he was considered a member of the detective force until the commission was abolished (August, 1920), and that he so stated to the plaintiff in the presence of the other members of the commission.

However, the city contends that when the plaintiff was placed in jail, where he remained for thirty-one days, he was incapacitated to perform his duties, and that for this reason his relations to the city as an officer ipso facto ceased, and there could, consequently, be no continuing liability or obligation on the part of the city to pay him a salary. We cannot agree with this contention. Whether or not the plaintiff rendered any services during the time for which he claims compensation is of no vital legal import. The real question is, did the plaintiff have title to the office during the period for which he claims compensation? If he had title thereto he is due his salary, otherwise not. A policeman is a public officer (Marlow v. Savannah, 28 Ga. App. 368, 110 S. E. 923); and the plaintiff, as such an officer, was entitled to his salary • not by force of any contract, bnt because the law attaches it to the office. And the plaintiff, being the incumbent, .is entitled to his salary until legally suspended or removed. See, in this connection, Coleman v. Glenn, 103 Ga. 458 (30 S. E. 297, 68 Am. St. R. 108), and citations. See also Civil Code of 1910, §264 (2), which declares that an office in this State is vacated by “ incapacity ” only “ from the time the fact is .ascertained and declared by the proper tribunal.” No such trial was ever accorded the plaintiff. Therefore, the fact that the plaintiff was. arrested and imprisoned on a criminal charge, and was for the period of his incarceration (thirty-one days) physically incapacitated to perform his duties as an officer, did not of itself necessarily make the office vacant nor divest him of title thereto.

While we have been unable to find any Georgia case directly in point upon this question, the rulings of the Court of Appeals of New York are persuasive authority for us to hold as we do. In the case of People ex rel. Nugent v. Police Commissioners, 114 N. Y. 245 (21 N. E. 421), it was held: “ The relator, a patrolman of the police force of the city of New York, was arrested by his superior officer on June 13, 1879, on a charge of felony, and was imprisoned until January 17, 1880, when he was acquitted on trial. On that day he reported for duty. On January 24 he was dismissed from the force. In proceedings by mandamus to compel payment of his salary from the time of his arrest to that of his dismissal, the defendant claimed that under, the provision of the act of 1873, supplemental to the city charter of that year (§ 5, chap. 755, Laws of 1873), which provides that ‘any member of the police force who shall be absent from duty without leave for the term of five days shall. . . cease to be a member of the police force,’ the relator’s title to the office ceased on June eighteenth [thirteenth?]. Held, untenable; that an enforced absence, caused by an unjustifiable arrest and detention, as was the case here, was not within the intendment of the statute!’ (Italics ours.) See also People ex rel. Mitchell v. Martin, 143 N. Y. 407 (38 N. E. 460). In the instant case the plaintiff’s absence from his duties was an enforced one, caused by an arrest and detention for which he was in no way to blame, for the evidence adduced shows that he was indicted, arrested, and imprisoned for the offense of murder (which charge was occasioned by the performance of the duties of his office under specific orders of his superior officers), and that the indictment against him was subsequently nol. prossed. The evidence shows also that after being in jail thirty-one days he was released on bond and immediately reported to the proper officers of the city and demanded to be put to work, but that they declined to permit him to resume his duties as a member of the police force until the charges against him were dismissed, and announced that they would not try him or take any action in the premises, although he repeatedly demanded a trial; and that from the time that he was released from jail up to the time of the trial of this case he continued to offer his services, but was not permitted to perform the duties of his office. Clearly, therefore, the Nugent case, supra, is directly in point; and, while that case is not binding upon this court, we think it is quite persuasive authority, as it is based upon common justice and sound public policy. Suppose, for instance, that a policeman, while attempting to arrest a burglar, was forced, in order to save his own life, to shoot and kill the felon, but, before so doing, he himself was seriously wounded by the desperado, and, after being confined for weeks in a hospital, he was subsequently indicted, arrested, and placed in jail upon a charge of murder, although subsequently tried and found not guilty by a jury of his peers, would any court hold that the mere fact that the officer was incapacitated to perform his duties during the time he was in jail, as well as during the time he was convalescing from the wound received in the faithful discharge of his duties, would cause him to be divested of the title to his office? We think not. Such a ruling would be contrary to public policy, in that it would materially hamper every police officer in the performance of his official duties, and would not only tend to make him, consciously or unconsciously, reluctant to go into any place of danger, but would expose him to the probable or possible loss of his office from prosecution that might be instituted by the friends or relatives of any criminal whom he might be forced to kill in the discharge of his official duties.

Nor can we hold, as contended by counsel for the city, that under the law and facts of this case the plaintiff abandoned his office. As already suggested, the action of the court in nol. prossing the indictm'ent against the plaintiff was tantamount to a ruling by a court of competent jurisdiction that he was unjustly accused and unjustly imprisoned for the proper performance of an official act. Surely it cannot be rightly said that under- such circumstances the. plaintiff’s involuntary incarceration amounted to an abandonment of the office. In Johnson v. Brooks, 139 Ga. 787, 791 (78 S. E. 37), the Supreme Court, speaking through its Chief Justice, said: “We have no doubt of the right of petitioner to recover his salary as judge of the city court of Newton for the year 1911, notwithstanding under the facts of the case he discharged none of the duties of the office during that year. It has been often held that an officer’s right to his compensation does not grow out of a contract between him and the State or the municipality by which it is payable. The compensation belongs to the office, and is an incident of his office, 'and he is entitled to it, not by force of any contract, but because the law attaches it to the office.’ Throop on Public Officers, § 443. It follows 'that the rules of law relative to contracts do not apply to the official relation; and therefore the fact that an officer has not performed the duties of his office does not deprive him of the right to the salary attached thereto, provided his conduct does not amount to an abandonment of the office. 29 Cyc. 1422.” (Italics ours.) The court further said in that case: “ It follows . . that the petitioner held the office . . during the year 1911. . . unless his conduct and his failure to perform the .duties of the office, in the circumstances above set forth, amounted to an abandonment of the office, as was contended to be the case by counsel for the defendant in error, who relied upon Civil Code, §264 (7), which is to the effect that all offices in this State are vacated by abandoning the office and ceasing to perform its duties, or either.’ This language of the code means the wilful and voluntary forsaking or relinquishment of the office or of the right to hold the same, or a wilful and voluntary failure to perform the duties of the office, and not a failure to discharge its duties by reason of acquiescence in the validity of a statute until it is judicially declared to be nugatory.” (Italics ours.) In the instant case the plaintiff’s absence was an enforced one, due solely to the discharge of his official duties, and we have no hesitancy in holding, in view of the above decision, that he did not abandon his office.

It is also contended by the city that inasmuch as it in good faith paid “ to a de facto officer the salary of the office, the de jure officer cannot recover ” from the city, but must recover, if at all, from the de facto officer. There is likewise no merit in this contention. The evidence shows that when the six detectives, including the plaintiff, were imprisoned, only five men were then elected to take their places, and the record shows that this was only a temporary arrangement, and that no one was specifically named to succeed the plaintiff. Under these circumstances we might ask which one of the de facto officers could the plaintiff sue for his salary?

It is also urged by the city that the plaintiff “ cannot recover until reinstated.” However, in the brief of counsel for the city it is admitted that this court seems to have decided otherwise in the case of Burney v. Mayor &c. of Boston, 24 Ga. App. 7 (7) (100 S. E. 28). Moreover, the record shows that the plaintiff was never dismissed or suspended, and, therefore, he could not have been reinstated. Moreover, even granting that the plaintiff could not recover for the time during which he was in jail, he reported for work immediately after his discharge therefrom and repeatedly thereafter, and therefore he is entitled to.at least a portion of the amount sued for. See, in this connection, Duke v. Cason, 25 Ga. App. 344 (103 S. E. 176).

The decision in Mayor &c. of Brunswick v. Fahm, 60 Ga. 109, relied upon by counsel for the citj', is not contrary to the ruling here made. The facts of that case clearly distinguish it from the instant one. There Fahm, the clerk and treasurer of the City of Brunswick, was imprisoned on a criminal charge, and the mayor and council dismissed him from his office and immediately elected another person to fill out the balance of his term. A bill of indictment for forgery was found against him, but on the trial of the same he was acquitted, and he thereupon sued the city for the balance of his annual salary. It will be observed that in that case the mayor and council dismissed Eahm and immediately elected another person to fill his office, whereas in the instant case the plaintiff was never dismissed, and no other person was ever elected or appointed to take his specific office or position. Moreover, Fahm did not hold his office under a civil-service commission, as did the plaintiff in the instant case. Again, Fahm was not indicted and prosecuted for an act performed in good faith in connection with his official duties, whereas in the instant case the plaintiff was indicted for an alleged act done in good faith in the performance of his official duties and in obedience to the explicit orders of his superior officers.

From what has been said it follows that the court erred in awarding a nonsuit.

Judgment reversed.

Bloodworth, J., concurs. Luke, J., dissents. '