Deason v. DeKalb County

Full title: DEASON v. DeKALB COUNTY

Court: Supreme Court of Georgia

Date published: Apr 7, 1966

222 Ga. 63 (Ga. 1966)

148 S.E.2d 414

Opinion

23337.

ARGUED MARCH 15, 1966.

DECIDED APRIL 7, 1966. REHEARING DENIED APRIL 19, 1966.

Certiorari to the Court of Appeals of Georgia — 112 Ga. App. 721 ( 146 S.E.2d 382).

E. T. Hendon, Jr., for appellant.

George P. Dillard, Herbert O. Edwards, Robert E. Mozley, for appellee.

1. An employee who has obtained a permanent employment status under a county merit system and who is wrongfully discharged may maintain a suit against the county for his salary even though such suit is not expressly authorized by statute.

2. (a) The constitutional requirement of uniformity is not applicable to a law relating to the powers and duties of county commissioners.

(b) DeKalb County is bound by a decision of the Court of Appeals which reversed the action of the DeKalb Merit System Council.

ARGUED MARCH 15, 1966 — DECIDED APRIL 7, 1966 — REHEARING DENIED APRIL 19, 1966.

The present case arose out of prior litigation in the Court of Appeals ( Deason v. DeKalb County c. Council, 110 Ga. App. 244 ( 138 S.E.2d 183). which held that the plaintiff, a county police officer, was wrongfully discharged from his employment with DeKalb County under the DeKalb Merit System. The plaintiff now sues for the recovery of his salary during the period his employment was illegally terminated until the Court of Appeals reversed the trial court and the action of the DeKalb Merit Council in upholding his discharge.

The petition alleges: that DeKalb County has established a merit system for its employees pursuant to Ga. L. 1956, p. 3111; that the Commissioner of Roads and Revenues has approved rules and regulations pursuant to the Act governing the operation of the merit system; that the plaintiff had acquired a permanent appointment as a patrolman with the DeKalb Department of Public Safety pursuant to rules and regulations adopted by the DeKalb County Board of Commissioners in accordance with the Act; that the plaintiff remained in the employment of DeKalb County as a patrolman until October 16, 1962, when the director of the Department of Public Safety terminated the plaintiff's employment, which action was upheld by the Merit System Council; that on petition for certiorari to DeKalb Superior Court an order was entered sustaining the judgment of the Merit Council; that on September 9, 1964, the Court of Appeals reversed the trial court's judgment and held that the discharge was arbitrary, indiscriminate and void.

DeKalb County, as defendant, filed its general demurrer to the petition, which demurrer was overruled by the trial court. On appeal the Court of Appeals held: "A suit can not be maintained against a county unless authorized by statute or by the provisions of the Constitution... The petition should show the authority of the plaintiff, under the statute, to bring the suit." DeKalb County v. Deason, 112 Ga. App. 721, 722 ( 146 S.E.2d 382). The trial court's judgment was reversed. This ruling was made upon the assumption that no statute of the State permitted the filing and prosecution of the plaintiff's suit against the county for salary actually due him under the contract of employment, in that there was no language in the 1956 Act expressly authorizing a suit for back salary against the county. We granted certiorari to consider that proposition.

QUILLIAN, Justice.

1. We are of the opinion that an employee with tenure under a civil service or merit system Act, where he was wrongfully discharged, may maintain a suit against the county for his wages even though the statute does not expressly authorize such suit.

Counties are empowered to sue or be sued in any court. Code § 23-1501, but "a county is not liable to suit for any cause of action unless made so by statute." Code § 23-1502. However, an exception exists where a county breaches a contract it was authorized by law to undertake. As stated in Decatur County v. Praytor, Howton Wood Contr. Co., 163 Ga. 929, 934 ( 137 S.E. 247): "Whenever a county is made liable by statute for a demand, or is authorized by statute to contract, and in pursuance of such power does contract then an action will lie against it to enforce such liability, or to enforce any rights growing out of such contract, although there is no statute expressly authorizing the bringing of an action for such purpose. ... In other words, a county can always be sued upon any liability against it created by statute, or for breach of any valid contract which it is authorized by law to make." Harris County v. Brady, 115 Ga. 767 (1) ( 42 S.E. 71); Washington County v. Sheppard, 46 Ga. App. 240 (1) ( 167 S.E. 339).

"Liability to suit may be shown by indicating that the claim arises... as an incident in the performance of an undertaking by the county authorized by statute." Fulton County v. Gordon Water Co., 37 Ga. App. 290 (1) ( 140 S.E. 45). A petition sufficiently shows the suit is brought under a particular statute when the facts alleged clearly show the plaintiff's right to recovery under the provisions of the statute. Here the county was authorized to enter into employment agreements both by the statute, Ga. L. 1956, p. 3111, enacted under authority of the constitutional amendment, Ga. L. 1949, p. 2137, ratified November 7, 1950, and by the general law pertinent thereto, Code §§ 23-1401, 23-1402 and 23-1409. The petition alleges the plaintiff was employed and obtained a permanent status under the law and the regulations promulgated by the county commissioners. Under such circumstances the county is subject to suit.

While Code § 23-1701 provides that all contracts entered into by the governing authority with other persons in behalf of the county shall be in writing and entered on the minutes, this court has held that the payment of salaries of county officials and employees is not contractual within the provisions of this Act. Templeman v. Jeffries, 172 Ga. 895 ( 159 S.E. 248); First Nat. Bank v. Mann, 211 Ga. 706 (2) ( 88 S.E.2d 361).

2. The respondent in certiorari contends there are other reasons why the decision of the Court of Appeals was correct and thus poses two additional questions for our determination.

(a) Counsel for the respondent urges that Code § 23-1407 provides: "The terms for which said county police shall be elected or appointed shall be left to the discretion of the commissioners or ordinaries and such county police or any member thereof may be removed from office at any time at the will of the commissioners or ordinaries, with or without cause." Hence, the Act of 1956 is a special law contrary to the terms of a general law and must yield. Art. I, Sec. IV, Par. I of the Georgia Constitution ( Code Ann. § 2-401).

The Act of 1956 was enacted pursuant to a constitutional amendment, Ga. L. 1949, p. 2137, ratified November 7, 1950. Even the fact that an amendment to the Constitution differs radically from the provisions of existing parts of that document does not render the amendment ineffectual or invalid. Clements v. Powell, 155 Ga. 278 (5) ( 116 S.E. 624); Cason v. State of Ga., 217 Ga. 339 (2) ( 122 S.E.2d 232). The constitutional prohibition that "no special law shall be enacted in any case for which provision has been made by an existing general law" is not applicable to a situation where subsequent to the enactment of a general law, another law is passed pursuant to a constitutional amendment. McWilliams v. Smith, 142 Ga. 209 (1,2) ( 82 S.E. 569); Barnard v. Dupree, 149 Ga. 796 ( 102 S.E. 422).

Moreover, even if the 1956 Act be treated as a special law, it was one dealing with the powers and duties of county commissioners. There is no requirement as to uniformity where the duties and powers of county commissioners are concerned. Smith v. Duggan, 153 Ga. 463, 465 ( 12 S.E. 458); Bowen v. Lewis, 201 Ga. 487, 489 ( 40 S.E.2d 80); Hutchins v. Candler, 209 Ga. 415, 418 ( 73 S.E.2d 191); Mathew v. Ellis, 214 Ga. 665, 666 ( 107 S.E.2d 181); Wilson v. Jones, 218 Ga. 706, 709 ( 130 S.E.2d 227). See Art. VI, Sec. XVII, Par. I and Art. XI, Sec. I, Par. VI of the Georgia Constitution ( Code Ann. §§ 2-5201, 2-7806). Thus, even though a general law provided the manner for discharging county police by the county commissioners, a special law relating to this subject in DeKalb County would be valid.

(b) It is contended that DeKalb County, not being a party to the former action, would not be bound by the decision of the Court of Appeals in that case. Such contention overlooks the plain intent of the 1956 Act which makes the merit council the right arm or alter ego of the county insofar as employees of the county are concerned. Section 5 of the Act provides: "The decision of the council shall be binding upon the governing authority of said county as to whether such dismissal was for proper cause." Ga. L. 1956, pp. 3111, 3115. "A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue...." Code § 110-501. The ruling of the Court of Appeals which controlled the action of the merit council would be binding upon the county.

Judgment reversed. All the Justices concur.