MacNeill v. Wertz , 198 Ga. 47 ( 1944 )

The act of the General Assembly approved August 16, 1913 (Ga. L. 1913, p. 112), confers no authority on the judges of the superior courts to appoint an assistant probation officer, unless and until the grand jury has recommended the appointment.

No. 14910. JULY 10, 1944. Mrs. Lena Wertz filed her petition in Fulton superior court, against Mrs. Mabel Abbot MacNeill, as treasurer of Fulton County, seeking a mandamus to compel the defendant to pay her the sum of $2155 with interest from August 25, 1943. She alleged that on December 30, 1930, she was appointed adult probation officer for Fulton County by an order of the judges of the superior court of Fulton County, and that her salary had been fixed by the judges at the sum of $150 per month; that from 1931 through 1940, she had received as salary various sums less than the amount fixed by the judges so that the total salary received was $2155 less than the total salary for said period computed at the sum of $150 per month. By amendment she attached a copy of a court order, dated December 31, 1930, which provided as follows: "It is ordered that the following named persons be and they are hereby appointed adult probation officers in and for the county of Fulton and at the monthly salaries indicated, to wit: George Allen Maddox, chief probation officer, $375; J. M. McElroy, assistant chief probation officer, $250; D. W. Green, $150; C. P. Martin, $225; Walter T. Daniel, $200; Miss Ida Bellah, $175; Mrs. Lena Wertz, $150. The foregoing appointments are made and said appointees shall hold and serve subject to the will of the judges of the superior court of said county, as provided by law. It is further ordered that this order be entered upon the minutes of the court, and that a copy be delivered to the commissioners of roads and revenues of said county." An excerpt from the presentments of the Fulton county grand jury of September, 1913, was shown. Under the heading of recommendations, appears the following: "Referring to Georgia Laws, 1913, page 112, an act entitled ``Probation of offenders in certain cases.' We hereby respectfully recommend the appointment of probation officer as provided for in section two of said act, page 113." An excerpt from the minutes of Fulton superior court, Book 11, Page 31, criminal minutes, Fulton superior court, 1913, was also shown, as follows: "By virtue of the power vested in me by section two, of an act providing a system for the probation of adult offenders in certain cases (Acts 1913, page 112), I, the undersigned judge of the Atlanta circuit of the superior court, criminal division, do hereby appoint Philip Weltner the county probation officer, to have supervision of all persons placed on probation under the orders of the superior court and the city criminal court of the City of Atlanta. This appointment to take effect forthwith. Given under my hand this 11th day of November, 1913."

The defendant filed a general demurrer and an answer to the petition. The case was submitted to the trial judge to pass upon all questions of law and fact without a jury. The general demurrer was overruled, and after hearing evidence, a mandamus absolute was granted. Exceptions pendente lite were duly filed to the judgment overruling the general demurrer. The bill of exceptions assigns error on the judgment overruling the general demurrer, and on the judgment granting a mandamus absolute. 1. The petition as amended does not show that the plaintiff in the court below, now the defendant in error, was appointed to the position of adult probation officer for Fulton County by reason of any recommendation of the grand jury of Fulton County; neither does it appear that she was a successor in office to anyone who was appointed by reason of a grand-jury recommendation. The brief filed by the defendant in error uses the following language: "We do not contend, however, that the defendant in error was beholden to any grand jury for her appointment, or that any grand jury ever recommended the creation of the position held by her. We do contend that such recommendations by the grand jury were not and are not necessary under a correct interpretation of the act, and after a grand jury has once recommended that a probation officer be appointed." Therefore we must deal with the question raised by the general demurrer upon the premise that the defendant in error was not appointed "assistant chief probation officer" as a result of any recommendation by the grand jury other than the recommendation made in 1913, when Philip Weltner was appointed county probation officer, and that the defendant in error is not a successor in office to Philip Weltner. This raises the question whether or not the judges of the superior courts have legal authority to add assistant probation officers without the recommendation of a grand jury as to such assistants, after the grand jury has recommended the appointment of a probation officer. The statute with reference to the appointment of probation officers and assistants provides as follows: "After the passage of this act, the grand jury of any county may recommend to the judge of its superior court that he appoint a county probation officer, and such assistants as may be deemed necessary, who shall have supervision and oversight of all probationers from the several courts of criminal jurisdiction in the county, and it shall be the duty of the judge to appoint such person or persons as seem best qualified for the duties devolving upon a probation officer, to serve during the pleasure of the court making the appointment, and to fix the salary, which shall be paid out of the county treasury, as part of the court expenses." Ga. L. 1913, p. 113, sec. 2.

The plaintiff in error contends that this court, in Carroll v. Ragsdale, 192 Ga. 118 (15 S.E.2d 210), decided the question here raised. In our opinion, the ruling in that case does not decide this question. The defendant in error contends that the question was decided by this court when the statute now under consideration was construed in Butler v. Pape,183 Ga. 599 (188 S.E. 890), and Freeney v. Pape, 185 Ga. 1 (194 S.E. 515). An examination of those two cases will disclose that the question now to be decided was not involved in either case. We know of no decision of this court in which the exact question to be decided has been raised or determined. Therefore we must construe the meaning of the language as contained in the act of 1913 above quoted. What does the act provide that the judge of the superior curt may do? "Appoint a county probation officer, and such assistants as may be deemed necessary." When does the act confer this power and authority upon the judge of the superior court? "After the passage of this act, the grand jury of any county may recommend to the judge of its superior court that he appoint a county probation officer, and such assistants as may be deemed necessary." When this has been done, the statute makes it, "the duty of the judge to appoint such person or persons." The judge is then given authority to make the selection or selections and to fix the salary or salaries. The legislative intent seems to be clear that the question whether there should be a probation officer and an assistant or assistants should be vested exclusively within the discretion of the grand jury. This being true, the judge of the superior court did not have authority to appoint a probation officer or assistant probation officer, unless and until the grand jury had so recommended. Since the petition in this case fails to show that there had ever been such recommendation as to the position occupied by the defendant in error, she was never legally appointed assistant chief probation officer. It follows that the general demurrer should have been sustained, and therefore all subsequent proceedings are nugatory.

Judgment reversed. All the Justices concur.