Vason v. City of Augusta , 38 Ga. 542 ( 1868 )

Brown, C. J.

1. The 16th section of the Act of the Legislature, passed 15th of February, 1856, declares: “ That the City Council of Augusta shall be and they are hereby authorized to elect an officer to be known as ‘ Recorder,’ in whom they may vest exclusive jurisdiction of all violations of their ordinances, and he shall have power to try and determine the same,” etc.

The 17th section enacts that, “said Recorder shall hold his courts at such times and places as said City Council may prescribe, and they shall direct the mode of summoning or bringing up parties for trial. In the absence of the Recorder, the City Council or Mayor may appoint one of their body to preside in said Recorder’s Court.”

The 18th section provides, that, “said Recorder shall he .elected and hold his office for the term of two years, shall take an oath before the Mayor well and truly to discharge the duties of his office,” etc.

Under these enactments, we think it was the duty of the City Council to elect a Recorder. The legislature had in view the preservation of order, and the promotion of good government in the city, in conferring the authority upon the City Council to elect said officer, who is to fill the place, in fact, of a Judge of the Criminal Court of the city; and it is not mere matter of option, but it is the duty of the City Council to elect said officer in accordance with the statute, from time to time.

This view is abundantly sustained by authority. In the case, of the King vs. the Inhabitants of Derby (Skinner 370) a motion was made to quash the indictment found against the inhabitants for refusing to meet and make a rate to pay the constable’s tax, on the ground that the statute was not imperative, but merely “ they may meet,” etc. The Court held that may, in the ease of a public officer is tantamount to shall, and if he does not do the act required, he shall be punished.

The Statute of 14th Car., 2 Ch. 12, says the church wardens “ shall have power and authority to make a rate,” etc. It was insisted that this act simply invested them with power to make the rate,' but that it was not obligatory, and they were not punishable for neglecting it. The Court held otherwise, observing that when a statute directs the doing of a thing for the sake of justice or the public good, the word may is the same as the word shall. 2 Salk., 609; Carth, 293. And it was added that, when a statute says a sheriff way take bail, this is construed he shall, for he is compelled to do so. See also 3 Atk., 166; 1 Wend., 537; 5 J. Ch. Reps., 113; 5 Con., 188.

If, however, we were to admit that it was within the discretion of the City Council to organize said office of Recorder under the statute or not, having exercised that discretion in the organization of the Court, they had no right to abolish the office, 3 Hill’s N. Y. Reps., 615, 616.

The Recorder, when elected, is required to take the oath of office before the Mayor. And the City Council or Mayor, may appoint one of their body to preside in the Recorder’s Court in his absence.

We think it very clear that the City Council have no right under this Act to remove the Recorder and appoint the Mayor permanently to act as Recorder. They may, by a provision of the statute, remove the Recorder (for cause) by a vote of two-tliirds of all the members of the Council. But it can only be done for cause, and in that case, it is very clear that it is their duty to elect another Recorder to fill the office from which they have removed the incumbent. And they have no right to elect the Mayor to fill the vacancy, as the Recorder must take the oath of office before the Mayor, and it would be absurd to say, that he could take the oath of Recorder before himself as Mayor. He may, by appointment of the City Council, preside, not in his own court, but in the “ Recorder’s Court” in his absence. The statute doubtless contemplates the case of the temporary absence of the Recorder.

2. The City Council have the authority under the charter to establish such by-laws, rules and ordinances, as shall appear to them requisite and necessary for the security, well-fare and convenience of the city, for preserving peace, order and good government, within the same, not repugnant to the constitution and laws of the land. Under this authority they may make all such rules and regulations as the health, comfort and convenience of the people, under their jurisdiction, may require, and may provide for the punishment of all such offenders against their ordinances as are not under the constitution and laws, punishable in the Criminal Courts of this State. They may also bind over all offenders who violate the Penal Code of this State, within said city, for trial in the proper Courts.

3. Section 4478 of the Revised Code enacts, that any person who shall erect or continue, after notice to abate, any nuisance, which tends to annoy the community, or injure the health of the citizens in general, or to corrupt the public morals, shall be indictable and punishable. We hold that, the indictable offence is not complete under this section, before notice to abate, and that the City Council may cause to be punished any person who maintains a nuisance in the city violative of their ordinances, at any stage previous to the consummation of the offence under the Penal Code. But if the offence is complete under the Penal Code, they should bind over the offender for trial in the court having jurisdiction of the offence. They may also take the legal steps to have the nuisance abated.

4. The only remaining question made by this record is, the liability of 'Vason for the alleged nuisance maintained upon the premises by Butt, his tenant.

As we understand the rule, the landlord is not liable for a nuisance maintained by his tenant during the period of the lease. The landlord is liable, however, for any nuisance which may exist upon the premises at the time he makes the lease. Taylor’s landlord and tenant, 95. But if tjie tenant continues the nuisance, after he obtains exclusive possession and control, he alone is liable for its continuance. As the evidence shows that Butt, the tenant, had occupied the premises for the last eighteen years, we do not think the landlord was liable for a nuisance maintained upon them.

Section 2258 of the Revised Code makes it the duty of the landlord to keep the premises in repair. And it is insisted in this case that the failure of the landlord to make the necessary repairs aggravated, if it did not cause the nuisance. The evidence to establish this is not very satisfactory. But, if it were established, that the nuisance grew out of the failure of the landlord to make the repairs, this could not relieve the tenant, as he might have made them and charged them to the landlord, and he might set-off their reasonable value against the rent due the landlord, unless he had, by contract with the landlord, bound himself to make the repairs.

Judgment reversed.