Thompson v. Dunn

Nichols, Judge.

“The writ of certiorari shall lie for the correction of errors committed by justices of the peace, corporation courts or councils, or any inferior judicatory, or any person exercising judicial powers . . .” Code § 19-101. “In determining whether or not a proceeding be judicial in character, the *166question hinges not on whether the parties at interest were in fact given opportunity to be heard, since an officer cannot clothe himself with unauthorized judicial powers by mere voluntary compliance with the forms of judicial procedure, but the test is whether the parties at interest had a right under the law to demand a trial in accordance with judicial procedure.” South View Cemetery Assn. v. Hailey, 199 Ga. 478, 481 (34 S. E. 2d 863). “But the mere fact that a hearing is afforded is not determinative. It is the nature of the act to be performed by the body before which it is conducted that is determinative.” Tamiami Trail Tours v. Georgia Public Service Commission, 213 Ga. 418, 429 (99 S. E. 2d 225), and citations.

The Civil Service Board of Fulton County was established by the act of November 15, 1943 (Ga. L. 1943, p. 971). This act, as amended (Ga. L. 1945, pp. 850, 854), provides: “Section 18. Removal. Any appointing Authority may dismiss a subordinate in the classified service, for cause, upon filing with the Board copy of written notice furnished the employee to be removed, setting forth in detail the reasons for such action, before the effective date of such removal. The dismissed employee shall have an opportunity to answer the charges in writing within ten (10) days, and to file with the Board affidavits in support of such answer. All papers filed in the case shall be subject to inspection by the persons affected. Such action of the appointing authority shall be final, except the Board may reinstate an officer or employee so removed in case it appears after proper hearing that the removal was made for personal political or religious reasons and not justified . . . Section 18 (a). Whenever an employee has been suspended, demoted, discharged, disciplined, or otherwise caused to suffer any loss in classification, grade or salary, such employee shall have the right of appeal to the Civil Service Board. This right may be exercised at any time within ten days from the date of such suspension, demotion, discharge or other disciplinary action by a request in writing for such hearing filed with the Secretary of said Board. Immediately upon the receipt of such request, the Secretary shall notify the members of the Board and call a meeting of the Board for proper hearing of the case. The Board shall pro*167ceed to hear all parties at interest and such evidence as may be introduced by any of them at the earliest practicable date after notice of the appeal has been filed. The filing by an employee of an answer to charges to the written statement filed by the appointing authority with the Board as provided in Section 18 above, without further formality shall be deemed a sufficient demand for a hearing.”

It is apparent from the statutory provisions that the proceedings before the Civil Service Board of Fulton County are quasi-judicial in character. Since the board therefore exercised judicial powers, the writ of certiorari lies for the correction of errors committed by it. Code § 19-101. The contention of Dunn that appeal and not certiorari is the proper remedy overlooks the fact that “the appellate jurisdiction of the Superior Court must be exercised, and can only be exercised, in those cases where the right of appeal thereto is provided by law.” Georgia R. & Bkg. Co. v. Redwine, 208 Ga. 261 (2) (66 S. E. 2d 234). The statute makes no provision for appeal and consequently any errors of the Civil Service Board of Fulton County can be corrected only by a writ of certiorari to the superior court. The motion to dismiss such writ was therefore properly denied.

The findings of fact contained in the board’s order of June 11, 1959, set forth above are supported by evidence in the record. Under these facts, the conclusion of the board that the dismissal of Dunn in the summary manner set forth in the findings was “for personal reasons and was not justified” cannot be said to be erroneous as a matter of law. Certainly the findings of fact contained in the Civil Service Board’s order are supported by ample evidence, and competent evidence, and where there is any competent evidence to support the findings of the Civil Service Board this court is without authority to disturb such findings. Fitzgerald v. Mayor &c. of Savannah, 100 Ga. App. 372 (111 S. E. 2d 257). Under these circumstances the superior court did not err in affirming the judgment and findings of the Civil Service Board of Fulton County and in overruling the petition for certiorari.

Judgments affirmed on the main bill of exceptions and on the *168 cross-bill.

Gardner, P. J., Townsend and Frankum, JJ., concur. Felton, C. j., Carlisle and Bell, JJ., dissent.