Asbell vs. The Mayor, etc. of Brunswick

Supreme Court of Georgia1888-03-26

80 Ga. 503

Summary · law.co

Holding. The judgment is reversed and the writ of certiorari should have been granted. The presiding officer, Mr. Penniman, was entitled to vote on the dismissal motion as a full member of the court, and the lower court erred in excluding his vote and in refusing to grant the writ of certiorari.

George W. Asbell, a Brunswick police officer, faced charges of inefficiency and misconduct, including an allegation that he withheld information about a homicide unless paid $1,000. After a trial before six aldermen, Asbell was found guilty. The court then voted three-to-three on whether to dismiss him from office. The city attorney argued that the presiding officer, Mr. Penniman, could only vote in case of a tie, and his vote was discarded, resulting in the dismissal motion being declared adopted. Asbell petitioned for a writ of certiorari to review this action, which the trial judge denied.

The appellate court held that the trial judge erred in refusing to grant the writ. The court found that nothing in the Brunswick charter or the record prevented Penniman from voting as a regular member, and that his vote should have been counted. The court noted that while the mayor and aldermen possessed the power to remove officers for good cause even without a trial, any removal must be done properly and in accordance with law. Because procedural defects occurred in the removal process, the case required further judicial review.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a presiding officer of an administrative tribunal may vote on substantive matters
Proper procedure for removal of municipal officers
Standard for granting writs of certiorari in municipal disciplinary proceedings

Procedural posture

Asbell applied to the superior court judge for a writ of certiorari to review the aldermen's decision to remove him from the police force, but the judge denied the application without further hearing.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Blandford, Justice.

This was an application by George W. Asbell to- the judge of the superior court for a writ of certiorari, which the court refused to grant, upon the petition without more. The application shows that Asbell was a policeman of the city of Brunswick; and that the mayor exhibited certain charges against him, for inefficiency in the discharge of his duties and for failure and neglect of duty; it being charged that he, being then a policeman of said city, whose duty it was to discover and disclose information pertaining to the commission of crimes or offences within the limits of the city, claimed that he had information tending to convict the perpetrator of a homicide committed in that city, which information he failed to disclose, but which, in a certain anonymous letter to the mayor and council, he proposed to furnish if they would pay him $1,000. Asbell appeared and answered these charges, the trial being had before six aldermen sitting as a court, one of whom, Mr. Penniman, acted as presiding officer of the court, he being mayor pro tern! and the mayor being absent and refusing to preside. Asbell was found guilty; which finding, he says in the petition, was contrary to the evidence.

As to this, we differ from the petition; we think the evidence shows that he was guilty beyond any question.

Upon the proposition that the defendant be dismissed from the police force, three members of the court voted in favor of dismissal, and three members against it, one of the latter being Mr. Penniman, the presiding officer of the court. Thereupon the city attorney suggested to the court that Mr.” Penniman, being the presiding officer, was not entitled to vote except in case of a tie; and the court ruled that he was incompetent to vote and his vote was withdrawn, and the motion to dimiss the defendant from the police force was thereupon declared adopted. This is assigned as error.

We think the judge of the superior court should have granted this writ of certiorari. We see no reason why Mr. Penniman should not have been allowed to vote as well as any other member of the court. The law authorized him to vote. There is nothing in the act of the legislature, incorporating the city of Brunswick, which deprived him of the privilege, and if there is anything in the ordinances of the city to that effect, it does not appear in this record; we have none of the ordinances before us. So we think that the court organized to try the defendant ruled wrongly in holding that Mr. Penniman was not entitled to vote.

It was competent, under the act of the legislature incorporating the city, (acts of 1872, p. 151,) for the may-- or and aldermen to remove this officer executively, if they thought proper to do so, without trying him at all, provided they had good and sufficient cause., The 9th section of this act is as follows: “The said mayor and aldermen shall . . elect all permanent officers of the city, . . and prescribe their duties, . and may, at their discretion remove them and all others from office, for a breach or neglect of duty, or for bribery pr incapacity; and they shall also appoint all such other officers of the city as they may deem necessary and proper for the -police and good government of the same, and regulate the time and manner of electing said officers, and prescribe their duties, . . and remove them for good and sufficient cause.” And to do this, they would not be obliged to sit as a court. They must have good and sufficient cause ; otherwise the officer removed without good cause would probably have a right to bring an action against the city for his salary.

In view, therefore, of this act and the allegations in the petition for certiorari, we think that the judge of the superior court should have granted the writ and let it be answered, and then have determined the case properly. The judgment of the court below is reversed because of the refusal of the court to grant the writ of cet tiorari prayed for.

Judgment reversed.