Summary
In Anderson v. McMurry, 217 Ga. 145, 121 S.E.2d 22 (1961), the Georgia Supreme Court noted that "... a quasi-judicial action... is one in which all parties are as a matter of right entitled to notice and to a hearing, with the opportunity afforded to present evidence under judicial forms of procedure."
Summary of this case from Lee v. HutsonOpinion
21266.
SUBMITTED JUNE 13, 1961.
DECIDED JULY 6, 1961. REHEARING DENIED JULY 24, 1961.
Petition for mandamus. DeKalb Superior Court. Before Judge Hubert.
E. T. Hendon, Jr., for plaintiff in error.
George P. Dillard, Herbert O. Edwards, contra.
It was in legislative contemplation that the DeKalb County Merit System Council should act in a judicial capacity when exercising the power conferred upon them by the act of March 6, 1956 (Ga. L. 1956, p. 3111 et seq.), which provides that the council shall conduct hearings and render decisions on charges preferred against persons employed in the several departments and offices included in said merit system, and hear appeals from any employee who claims to have been improperly dismissed. Therefore, a hearing conducted in accordance with the terms of a statute of this character and the rules made pursuant thereto is a quasi-judicial proceeding, and the writ of certiorari lies to review the rulings and findings of such judicatory body, and not mandamus.
SUBMITTED JUNE 13, 1961 — DECIDED JULY 6, 1961 — REHEARING DENIED JULY 24, 1961.
The judgment under review is one sustaining a general demurrer to a petition seeking a mandamus to require that the petitioner be reinstated as a patrolman, effective January 27, 1960, and that the defendants be directed to pay the petitioner his pay retroactive to January 27, 1960.
Cecil R. Anderson filed his petition in the Superior Court of DeKalb County against C. Payne McMurry, Obie T. Brewer, Dr. Wallace Alston, as comprising the Merit System Council of DeKalb County, and C. O. Emmerich, J. R. Almand, J. O. Bowen, Brince Manning, and William M. Evans, as constituting the Board of Commissioners of Roads and Revenues of DeKalb County, Georgia, in which he alleged the following facts: "That DeKalb County has established a Merit System for its employees pursuant to an Act of the General Assembly of the State of Georgia approved March 6, 1956, Ga. Laws 1956, page 3111; that the Commissioner of Roads and Revenues of DeKalb County has approved rules and regulations pursuant to said Act governing the operation of said Merit System; that he was employed by DeKalb County, Georgia, on January 1, 1956, as a patrolman with the Department of Public Safety and remained in said employment until on or about January 27, 1960, when he was directed by the head of said Department of Public Safety, Chief Brady Knight, not to return to work; and his pay as a patrolman has been terminated by the Commissioners of Roads and Revenues as of January 27, 1960; that he had acquired a permanent appointment as a patrolman with the DeKalb County Department of Public Safety pursuant to Article 3, Section C, of the rules and regulations adopted by the Board of Commissioners of Roads and Revenues of DeKalb County in accordance with the Act creating the DeKalb County Merit System; that he was placed under the DeKalb County Merit System in his capacity as a patrolman with the Department of Public Safety as provided by Section 1, Subsection B, of the Act creating the DeKalb County Merit System; that Article 12, entitled `Separations,' Section D, subsection 1, of the rules and regulations adopted by the Commissioners of Roads and Revenues of DeKalb County governing the Merit System of DeKalb County reads as follows: `The department head, upon notice in writing to an employee stating specific reason therefor, may dismiss an employee for causes as herein defined . . .'; that, at the time of his separation from the Department of Public Safety of DeKalb County, he was not notified in writing by the Department head or any other authorized person of DeKalb County of any specific reason for his discharge; nor has he been notified since said date of discharge to the time of filing this petition in writing of any specific reason for his discharge by any person; that he demanded of the Department head that he be permitted to return to work on or about January 30, 1960, and was advised by said Department head that your petitioner would have to get it cleared through the Merit System Council; and pursuant to said directions from the Department head, Chief Brady Knight, your petitioner appealed to the Merit System Council, and a hearing was had before said Council on or about April 16, 1960; that at said hearing, Mr. C. Payne McMurry was present as Chairman of said Merit System Council, and Mr. Obie T. Brewer was present as a member of said Council, and Mr. Mattox L. Purvis was present as the Director of the DeKalb County Merit System; that at no time before, during and after the hearing set forth hereinbefore was your petitioner advised in any manner of the reason for his discharge; nor was the Department head present to prefer any charges; nor were there present any witnesses on behalf of the Department head to show any cause for your petitioner's separation; that on or about April 27, 1960, following the hearing set forth herein, he was advised under a letter dated April 26, 1960, from Mr. Mattox L. Purvis as the Director of the DeKalb County Merit System as follows: `Members of the Merit System Council have completed their review of evidence and testimony developed in the case involving your separation of employment as a patrolman with the DeKalb County Department of Public Safety effective January 27, 1960, and have instructed me as Director of the Merit System to notify you that your release appears fully justified and that circumstances in this instance do not warrant removal of prejudice attached to your separation'; that upon receipt of the letter set forth in the preceding paragraph was the first time that he knew his separation had any prejudice attached to it; that following the receipt of the letter dated April 26, 1960, he notified the DeKalb County Merit System Council through his attorney at law as follows: `The above named individual requested a hearing before your Board for the purpose of inquiring into the reason and justification of his discharge from the DeKalb County Police Department. As you recall, I was present with him at this hearing; and he was not confronted with any witnesses or evidence whatsoever to justify the action by the Police Department. We are now advised that the action of the Police Department was found to be justified by your Board, and that in reaching your decision evidence was heard or taken after the above mentioned hearing at a time when Mr. Anderson had no opportunity to be confronted with these witnesses or to refute anything that they may have had to say concerning his discharge. We, therefore, feel that the purpose of his requesting a hearing before the Board has been completely thwarted; and we are now requesting that a hearing be had on the same matter, at which time we shall have an opportunity to be confronted with all of the witnesses and to refute whatever evidence they may have to offer'; that his request as set forth in the preceding paragraph was denied by Mr. C. Payne McMurry, Chairman of the Merit System Council on June 20, 1960; that he again requested a hearing before the DeKalb County Merit System Council on December 2, 1960, regarding his separation as hereinbefore set out, at which time all members of the Merit System Council were present; and your petitioner was not informed at this time in any manner the specific reasons for his discharge or notified of any charges made against him; nor was any testimony or evidence presented by the Department head concerning your petitioner's discharge; and said Merit System Council refused on December 15, 1960, to remove the prejudice connected with the petitioner's release and to reinstate your petitioner to his position under the Merit System; that his monthly pay rate was $344 as a patrolman with the DeKalb County Department of Public Safety; that his discharge as an employee of DeKalb County was illegal, null and void for the reason that he had acquired a position as a permanent employee and was not served with any written notice stating specific reasons therefore by the Department head in accordance with the rules and regulations of the Merit System Council as approved by the governing authority of said county; that the action on the part of the Merit System Council in refusing to reinstate your petitioner was illegal, null and void for the reason that no legal evidence or testimony was presented before said Council on your petitioner's appeal to said Council; nor were any specific charges brought against your petitioner at said appeal hearing, and said Council was without authority to ratify the action of the Department head in discharging your petitioner. Your petitioner shows that he was not dismissed due to curtailment in funds, reduction in staff or abolition of the job held by such employee; that he is entitled to be reinstated effective January 27, 1960, as a patrolman with the DeKalb County Department of Public Safety at a monthly pay rate of $344, and that he is entitled to receive his pay from DeKalb County retroactive to January 27, 1960, at a monthly rate of $344; that he has been ready, willing and able to perform the services of a patrolman with the Department of Public Safety of DeKalb County at all times since his discharge."
The petitioner prayed for process, to be reinstated as a patrolman with the DeKalb County Police Department effective January 27, 1960, that the Commissioners of Roads and Revenues be directed to pay petitioner's pay retroactive to January 27, 1960, for a mandamus nisi, and for a mandamus absolute.
Thereafter, on January 23, 1961, the defendants filed their general demurrer to the petition; and thereafter, on March 30, 1961, Honorable H. O. Hubert, Jr., entered an order sustaining the defendants' general demurrer. To this judgment the plaintiff excepts.
To entitle one to the writ of mandamus, it must appear that he has a clear legal right to have performed the particular act which he seeks to have enforced. City of Atlanta v. Blackman Health Resort, 153 Ga. 499 (5(1)) ( 113 S.E. 545). In the instant case, while the gist of the plaintiff's petition is that he was not furnished written specifications of charges against him before the hearing before the DeKalb County Merit System Council, he does not seek to require the DeKalb County Merit System Council to furnish him with written specifications of charges nor does he seek to mandamus the Merit System Council to afford him a hearing.
The only substantial relief sought by the plaintiff against the defendants is in prayers (b) and (c) of his petition in which prayers he seeks by mandamus to be reinstated as a patrolman effective January 27, 1960, and to require the Board of Commissioners to pay him his monthly salary retroactive to that date.
Code § 64-101 provides: "All official duties should be faithfully performed; and whenever, from any cause, a defect of legal justice would ensue from a failure or improper performance, the writ of mandamus may issue to compel a due performance, if there shall be no other specific legal remedy for the legal rights." Whether mandamus will lie in the present case will depend upon the nature of the council's acts. Should it be determined that the council acted purely ministerially or purely legislatively in making its decision then mandamus would be the proper procedure to determine the petitioner's rights if he had no other specific remedy. However, should it appear that the acts complained of were of a judicial nature, then the writ of certiorari would lie for the correction of any errors. City of Cedartown v. Pickett, 193 Ga. 840 (1) ( 20 S.E.2d 263); Gibbs v. City of Atlanta, 125 Ga. 18 ( 53 S.E. 811).
This court in South View Cemetery Assn. v. Hailey, 199 Ga. 478, 480 ( 34 S.E.2d 863), defined the distinction between a legislative and a judicial function as follows: "The chief distinction between a legislative and judicial function is that the former sets up rights or inhibitions, usually general in character; while the latter interprets, applies and enforces existing law as related to subsequent acts of persons amenable thereto . . . The basic distinction between an administrative and a judicial act by officers other than judges is that a quasi-judicial action, contrary to an administrative function, is one in which all parties are as a matter of right entitled to notice and to a hearing, with the opportunity afforded to present evidence under judicial forms of procedure. . ." (Italics ours.)
Let us then examine the act creating the DeKalb County Merit System to see whether the Merit System applies and enforces existing law as related to subsequent acts amenable thereto, and whether all parties are as a matter of right entitled to notice and to a hearing and afforded the opportunity to present evidence.
The DeKalb County Merit System Council was created pursuant to an act approved March 6, 1956 (Ga. L. 1956, p. 3111 et seq.). The duties and functions of the Merit System Council as set forth in Section 4 (b) of said act are: "To conduct hearings and render decisions on charges preferred against persons employed in the several departments and offices included in said merit system and to hear appeals from any employee who claims to have been improperly dismissed." Section 5 of said act provides that no employee may be dismissed except for good cause and in accordance with the rules and regulations of the Merit System Council as approved by the governing authority, and any employee who is dismissed shall have the right of appeal pursuant to the terms of the rules and regulations prescribed for appeal, such appeal to be heard at the next regular or special meeting and the appeal must be heard and determined by the Council within forty-five days of the date it was filed.
The dismissed employee must file his appeal in writing within ten days of the date of his dismissal. The decision of the Council shall be binding upon the governing authority.
Section 4(a) of said act provides that rules and regulations when proposed by the Merit System Council and approved and adopted by the Board of Commissioners shall be binding upon all departments and offices of the county enumerated in the resolution creating the Merit System Council.
The petitioner alleges in paragraph 8 of his petition a portion of the rules and regulations governing the Merit System relative to the appeal of the dismissed employee, which provides that such appeal shall be in writing and transmitted to the Director, "who shall arrange a formal hearing before the Council." This regulation also provides, "Both the employee and the Department Head shall be notified five days in advance of the hearing and shall have the right to present witnesses and give evidence before the Council."
That a hearing was afforded petitioner is not disputed nor does the petitioner contend that he was not permitted to offer evidence and testimony. On the contrary, the petitioner alleges in paragraph 14 of his petition a communication from the Director of the DeKalb County Merit System Council, which shows that evidence and testimony was developed at the hearing in question.
From the above it is clear that it is the duty of the Merit System Council to interpret, apply, and enforce existing law and rules and regulations adopted by the governing authority of the county which have the force of law as related to the acts of persons amenable to such law subsequent to their enactment. It is just as clear that the dismissed employee has a right to appeal to the Council, has a right to be heard, has a right to notice in advance of the hearing, and has a right to present witnesses and give evidence before the Council, and the decision of the Council is binding upon the governing authority of the county.
It is apparent that it was in legislative contemplation that the DeKalb County Merit System Council should act in a judicial capacity when exercising the power conferred upon them by the act of March 6, 1956, by section 4(b) of said act. A hearing conducted in accordance with the terms of a statute of this character and the rules made pursuant thereto is a quasi-judicial proceeding, and the writ of certiorari lies to review the rulings and findings of such judicatory body. Gill v. Mayor c. of Brunswick, 118 Ga. 85 ( 44 S.E. 830). The refusal of the court below to sanction the petition was correct, for the writ of mandamus in the present case could not properly have been issued since where a body sits in a quasi-judicial capacity, its decisions are subject to review only by the writ of certiorari. Maxwell v. Tumlin, 79 Ga. 570 (1) ( 4 S.E. 858).
For the reasons outlined above, the lower court did not err in sustaining the defendants' general demurrer to the petition seeking mandamus.
Judgment affirmed. All the Justices concur.