We are of the opinion that the first and second question must be answered in the negative. The proceedings against respondent Wallace are based upon the provisions of
Furthermore, it is provided in the act creating the city court of Leesburg (Acts 1905, p. 266), in the tenth section (p. 269), that all the duties and liabilities attached to the office of clerk of the superior court shall be attached to the office of clerk of the city court of Leesburg, and the judge of the city court of Leesburg is empowered to enforce the same authority over the clerk of the city court as is exercised by the judge of the superior court over the clerk of the superior court. The office of clerk of the superior court and that of the city court of Leesburg are distinct. They are two separate offices. It happens that in some counties there is a provision that the clerk of the superior court shall be ex-officio clerk of the city court. But this is a temporary provision subject to legislative change; for in many counties having city courts the clerk of the city court is a different individual from the incumbent of the clerkship of the superior qourt, and in the act creating the city court of Leesburg, though the incumbent of the office of clerk of the superior court is, until otherwise provided by law, ex-officio clerk of the city court of Leesburg, still the provision empowering the judge of the city court of Leesburg to enforce the same authority over the clerk of his court as is exercised by the judges of the superior courts over the clerks of the superior courts generally throughout the State is of necessity exclusive. The superior court of Lee County and the city court of Leesburg are of necessity distinct and independent tribunals, and necessarily in each court, as an independent function, inheres the jurisdiction to prevent, and, if necessary, punish its officers for misbehavior, misfeasance, or malfeasance. Under the ruling in Lancaster v. Hill, 136 Ga. 405 (71 S. E. 731, Ann. Cas. 1912C, 342), construing section 4897, supra, a statute authorizing the removal of an officer
The ruling announced in the third headnote requires no elaboration.
The fourth question, as we construe its meaning, must be answered in the'negative. The question is as follows: “Where, in a proceeding under the Civil Code, § 4897, to remove from office a clerk of the superior court, the jury has found the facts adversely to the defendant, has the judge of the superior court a discretion in determining what is sufficient cause for removal on account of
The fifth question asks whether a judge has a discretion in determining whether he will remove a clerk of the superior court after a finding adverse to the defendant upon such facts as would authorize the judge to remove a clerk of the superior court. We answer this question in the affirmative. The superior court is necessarily clothed with large inherent powers and extensive original jurisdiction. The administration of justice would be greatly hampered were it otherwise. It seems that especially upon a subject such as the control and discipline and removal, if necessary, of such essential officers as the sheriff and clerk of the superior court, there should be as little limitation as possible imposed. Upon this subject the judge should be clothed with a discretion which should not be controlled except in a case of manifest abuse. Cases can be imagined in which under the provisions of section 4897, supra, under the facts found by the jury, a judge of the superior court might be authorized to remove a clerk of the superior court; but, as we construe the language of the code section, he is not required to remove this officer forthwith unless such a course is necessary to the interests of the public and the public business. The language of section 4897, supra, is not mandatory and does not require the judge to remove a clerk of the superior court except
The sixth question must be answered in the negative, since any misbehavior, misfeasance, or malfeasance within the scope of the official duties of the clerk of the superior court may be sufficient cause for the removal, should the jury find adversely to the respondent on any one of several charges which of itself is sufficient to authorize removal by the judge of the superior court.
The answer to the seventh question is controlled by what we have already said in answer to the sixth question; and it follows that where the judge of the superior court has removed the clerk of the superior court even upon a verdict finding him guilty of a plurality of the charges in the petition, the removal would be
Having held that the clerk of the superior court of Lee County can not be removed from the office of clerk of the city court of Leesburg by the judge of the superior court of Lee County for any incapacity or misbehavior or misconduct in his office as ex-officio clerk of the city court of Leesburg, subdivisions (a), (b), (c), (d), and (e) of the eighth request for instructions will be answered as follows: (a) Incapacity, misbehavior, or other misconduct of the respondent as ex-officio clerk of the city court of Leesburg will not authorize the removal of the respondent as clerk of the superior court of Lee County, (b) The fact that some of the money belonging to the County of Lee, which it was charged the respondent had not paid over to the county, in violation of that provision of law contained in Acts 1917, p. 297, which requires the clerk of the superior court to pay into the county treasury all sums due the County of Lee within thirty days after receiving the same, which sum of money includes money collected by the respondent in the performance of his duties as clerk of the city court of Leesburg as well as money collected by him in the performance of his duties as clerk of the superior court of Lee County, is not subject to general demurrer and insufficient as not setting out a cause of action upon the ground that it seeks to remove the respondent from office on account of misconduct relative to his duties as clerk of the city court of Leesburg. Especially where it can be determined from the petition, by reference to a copy of the audit of the clerk’s account attached as an exhibit, what amount of said sum was collected by him in each capacity. So much of the sum as appertained to the city court of Leesburg was immaterial and irrelevant, and it might have been stricken by motion and was subject to special demurrer.' (c) Eor the same reason a count or allegation of misconduct in the petition which charges the respondent with having improperly kept the minutes and records as respects the disposition of 44 cases in the superior court of Lee County, and also with having committed ten errors and inaccuracies in minute book “C” of the city court of Lees-burg, is good against general demurrer, in that it sets forth a charge of incapacity as respects his conduct in the superior court of Lee County, where the ground of demurrer is that it charges