Mayor of Savannah v. Brown

64 Ga. 229

• Court: Supreme Court of Georgia
• Decided: September 15, 1879
• Status: Published

Opinion

Warner, Chief Justice.

Brown, the plaintiff, sued the defendants in a justice coui t for his wages as a policeman, and an appeal was taken therefrom to the superior court. On the trial of the case in the latter court, the jury, under the charge of the court, found a verdict in favor of (he plaintiff. A motion was made for a new trial on the grounds therein stated, which was overruled, and the defendants excepted.

1. The plaintiff also filed a bill of exceptions pendente lite to the decision of the court in refusing to dismiss the appeal upon his motion on the ground that the defendants, as a municipal corporation, could not enter an appeal by filing a pauper affidavit sworn to by its mayor. The mayor was the executive officer of the corporation, and as such, it was competent for him to make and file the pauper affidavit in its behalf for the purpose of obtaining the appeal, and there was no error in the refusal of che court to dismiss it.

2. The court charged the jury, amongst other things, “that the mayor of the city of Savannah could dismiss a policeman from the force only when he, the mayor, was sitting as the presiding officer of the police court. That if he had tried Brown as such presiding officer, he had the power to dismiss him; but if he had tried him in his capacity as mayor only, his action was void and Brown never had been legally dismissed. That even if he had discharged him while in the capacity of presiding officer of the police court, the jury could inquire into the cause of discharge, and if they found it insufficient, could give the plaintiff his wTages. That they had heard the evidence, and must determine in what capacity the mayor was acting when he discharged plaintiff.”

This charge of the court was error, in view of the evidence in the record and the law applicable thereto. The mayor had no jurisdiction, under the law and ordinances of the city, to hear and determine the question of the discharge of the plaintiff as a policeman only in his judicial capacity as mayor (no matter in what capacity he may have considered himself to have been acting), and the court should have so instructed the jury, and not have left it to the jury to decide in what capacity the mayor was acting when he discharged the plaintiff as a policeman. There is no doubt that the mayor of the city of Savannah, in his judicial capacity as such mayor, under the law and ordinances of the city, did have the power and authority to dismiss the plaintiff as a policeman, and there is just as little doubt that .the plaintiff had the legal right to have appealed from the decisión of the mayor to the mayor and aldermen of the-city in council assembled, which appeal, as appears from the evidence in the record, was refused by the mayor on the ground that no appeal lay from his decision. The plain remedy for the plaintiff was then to have applied for a mandamus) or certiorari, to correct that error of the mayor, and to have enforced his legal rights in the premises, but failing to have done so, the question arises whether the plaintiff is not now concluded by that judgment of the mayor dismissing him as policeman from recovering any wages as such subsequent to his discharge. This view of the question was excluded by the charge of the court, and a new trial must be awarded.

Let the judgment of the court below be reversed.