Deason v. DeKalb County, 23337

• Decision Date: 07 April 1966
• Docket Number: No. 23337,23337
• Parties: Jack P. DEASON v. DeKALB COUNTY.
• Court: Georgia Supreme Court

Page 414

148 S.E.2d 414

222 Ga. 63

Jack P. DEASON v. DeKALB COUNTY.

No. 23337.

Supreme Court of Georgia.

April 7, 1966.

Rehearing Denied April 19, 1966.

Syllabus by the Court

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 and action of the DeKalb Merit System Council.

The present case arose out of prior litigation in the Court of Appeals, Deason v. DeKalb County Merit System 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 tot he 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 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.

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

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

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 amde 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, 934-935, 137 S.E. 247, 249-250: '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 National Bank of Atlanta 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 2 additional questions for our determination.

(a) ...