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HILL v. JOHNSON et al.
20153.
Injunction. Coffee Superior Court. Before Judge Roddenberry. May 20, 1958.
HEAD, Justice.
It is the general rule that a court of equity has no jurisdiction to enjoin the removal of a public officer.
The petition for injunction in the present case is brought by the Mayor of the City of Nicholls against the aldermen and marshal of that city. It is asserted: The petitioner is the duly elected mayor of the city for the year 1958. The aldermen have conspired together to divest the petitioner of his right and authority as the supreme executive officer of the city, and they have delivered to him a notice that a hearing will be had in the city hall at 7:30 o'clock p. m. on May 5, 1958, to hear evidence on the question of impeachment of the petitioner under section 16 of the city charter. (This notice, attached as an exhibit to the petition, listed six specific charges against the petitioner of crimes and misconduct). The notice was maliciously published, and the statements contained therein are false, defamatory, and libelous. "There has been no enabling ordinance adopted by the legislative department of the City of Nicholls rendering operative the provisions of said section 16, without which its provisions are impotent and without effect. By itself considered, nor when considered with the remaining sections, said section 16 of the charter act of the City of Nicholls is not susceptible of being rendered retroactively enforceable by enabling ordinance. Any effort so to do would be violative of article I, section I, paragraph II, of the Constitution of Georgia, which is: 'Protection to person and property is a [the] paramount duty of government, and shall be impartial and complete;' and article I, section I, paragraph III, of the Constitution of Georgia, which is: 'No person shall be deprived of life, liberty, and [or] property except by due process of law;' article v. [Amendments] of the Constitution of the United States of America, which in part is: 'No person shall . . . be deprived of life, liberty or property, without due process of law.' " The defendants have "arrogated unto themselves the right to accuse, to constitute the personnel of the forum of trial, to become and be the triors of this petitioner, and to execute judgment based upon triors' findings, all of which is contrary to every recognized principle of justice and jurisprudence obtaining in these United States of America."
The petition prayed: that the hearing provided for in the notice be enjoined; that the defendants be restrained from doing any act involving his tenure of office, and from uttering or circulating by utterance matters derogatory of the petitioner as it involves his office; and for other and further relief.
The trial judge granted an order temporarily restraining the impeachment hearing. The defendants filed a general demurrer to the petition, which was sustained. The exception is to that judgment.
Section 16 of the act incorporating the City of Nicholls is as follows: "Be it further enacted, That should the Mayor or any member of the Board of Aldermen be guilty of malpractice in office, wilful neglect, or abuse of the powers conferred upon him, or shall be guilty of any other act or acts unbecoming an officer of the City of Nichols, he shall be impeached by the Board of Aldermen, by a majority vote of the entire Board of Aldermen of said city, and upon conviction shall be removed from office." Ga. L. 1920, p. 1337. It is alleged by the petitioner that the defendants are seeking to impeach him under the provisions of this section, and have given him notice of a hearing at which time they will hear evidence on the question of his impeachment.
It is the general rule that a court of equity has no jurisdiction to enjoin the removal of a public officer. Brackett v. Bridges, 178 Ga. 588 (173 S. E. 379); 43 C. J. S. 647, 116; 42 Am. Jur. 984, 144; 34 A.L.R. 2d 558, 2.
The petitioner relies mainly on the case of Coleman v. Glenn, 103 Ga. 458 (30 S. E. 297, 68 Am. St. R. 108), to support his contention that a statute providing the method of removal of a public officer, elected for a fixed term, for causes specified, but which makes no provision for any notice to such officer, or for a hearing of the charges against him, with an opportunity to make his defense, is unconstitutional, and an order of removal based thereon a mere nullity.
In Coleman v. Glenn, 103 Ga. 458, supra, one Justice concurred specially. The ruling therein in regard to the unconstitutionality of the statute has been followed by a majority of this court in some cases, and has been disapproved in others. For example, see Gray v. McLendon, 134 Ga. 224, 246 (67 S. E. 859); City of Macon v. Anderson, 155 Ga. 607, 608 (3) (117 S. E. 753); Walton v. Davis, 188 Ga. 56 (2 S. E. 2d 603). The Coleman case has been cited in a number of full-bench decisions declaring the principle that a public officer, with a fixed term of office, is not subject to removal except upon cause shown, with notice and an opportunity to be heard. Ledbetter v. Reese, 148 Ga. 633 (97 S. E. 669); Talmadge v. Cordell, 167 Ga. 594, 595 (5) (146 S. E. 467); Patten v. Miller, 190 Ga. 123, 140 (8 S. E. 2d 757).
The petitioner asserts that there has been no enabling ordinance adopted by the legislative department of the city to render operative the provisions of the city charter of Nicholls authorizing impeachment proceedings, and he seeks to enjoin the hearing of which he was given notice. Under the allegations of his petition, the defendants have given him reasonable notice of the time and place of a hearing to determine the issue of impeachment and there has been no actual denial of due process to him. Whether or not the members of the board of aldermen have prejudged the petitioner's case, the legislature has designated such members as the proper forum for hearing the impeachment proceedings, and he is not denied due process of law by reason of the fact that the impeachment proceedings will be conducted by them. Compare Emerson v. Hughes, 117 Vt. 270, 279 (90 Atl. 2d 910, 34 A.L.R. 2d 539).
This court has held that equity may restrain a person who seeks by force to interfere with an incumbent's possession of an office (Allen v. Wise, 204 Ga. 415, 50 S. E. 2d 69, and cases cited) but we have found no case decided by this court in which it has been held that an injunction should be granted to restrain the removal of a public officer. The present case is no exception to the general rule, and the trial judge properly sustained the general demurrer to the petition.
Judgment affirmed. All the Justices concur, except Wyatt, P. J., who dissents.
Arthur C. Farrar, George E. Maddox, Gibson & Maddox, contra.
M. L. Preston, R. A. Moore, for plaintiff in error.
ARGUED JULY 15, 1958 -- DECIDED SEPTEMBER 5, 1958 -- REHEARING DENIED OCTOBER 10, 1958.
Saturday May 23 01:34 EDT


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