Mayor of Macon v. Hays

By the Court. McDonald J. delivering the opinion. The defendant’s intestate was Marshal of the City of Macon, in the year 1853. Th : Mayor and Council of the City removed him fio.n office, dtt ^mining, that by gambling within the corporate limits», he had been guilty of mal-practice in office and neglept of duty. The Judge of the Superior. Court, of Bibb couuty, upon? a writ of certiorari,, quashed the proceedings of Council, and his judgment was affirmed by this. Court, 36 Ga. Harvey W„ Shaw, the dismissed Marshal, tire, plaintiff’s intestate, instituted suit for the recovery of hi.s salary for the balance of his term remaining unexpired at the time of his removal, and for the fees to which he would have been entitled, if he had not been removed. On the trial, the defendant offered to prove by Victor Menard, that the plaintiff’s intestate, while acting as Marshal in 1853, saw certain persons bet and play at cards for money, and that he did not prosecute them. The-Court refused to admit this evidence and defendants excepted. The presiding Judge excluded the evidence, no doubt, on the view which he took of the judgment of the Court above cited, in which it was held that the Marshal was improperly removed fot the cause specified in that record. When he sues for his fees, however, the case comes up in a different aspect, and the defendants may plead and prove any cause which would jus [592] iify the removal, so Taras it respects his duties as an officer of the corporation. To violate a public law, may not be a breach of duty as such officer, and that is all that this Court decided in the case first brought up. But if there was other good cause for the removal of the intestate, as Marshal, there is no good reason why the case should not be defended on that ground. If his term of office had not expired, when this suit was instituted, and he had moved for a mandamus to restore him, instead of bringing an action for his salary and fees, the Court would not have interfered, if good causa for his removal would have been shown, although he may have been removed without notice. Rex. vs. Mayor & C. of Axbridge, 2 Cowper 523. The King vs. the Mayor & C. of London. 2 Term Rep. 182. This Court has held that for offences committed, in his presence, within the corporate limits of the city, it was the duty of intestate as Marshal to prosecute without notice. It was the object of the witness Menard's evidence to establish a breach of duty in that respect. If such evidence would have been admissible against him on an application to be restored to office, it is certainly admissible to disprove his right to salary aud fees, for if he was not entitled to his office, he could not be entitled to salary and perquisites. Judgment reversed..