DeWitt v. Richmond County

Decision Date09 September 1941
Docket Number13817.
Citation16 S.E.2d 579,192 Ga. 770
PartiesDEWITT et al. v. RICHMOND COUNTY et al.
CourtGeorgia Supreme Court

Rehearing Denied Sept. 26, 1941.

Syllabus by the Court.

1. The provision in section 6 of the act of 1937 (Ga.L.1937, p 738), that county employees who have served twenty-five years may voluntarily retire and receive one half their salaries is construed to mean that only services rendered after effective date of the act are included in the twenty-five year period required.

2. The fund created under the terms of the above act by the deduction of three per cent. of the salaries of county employees is compensation for services rendered to the county, and its disbursement as provided by the act for disability and retirement pay is adjusted compensation for services rendered, and is not a gratuity.

3. Under the rulings just stated the act is not subject to any of the constitutional attacks made by the petition.

W. K. Miller, Hammond, Kennedy & Yow, and F. Frederick Kennedy, all of Augusta, for plaintiffs in error.

Isaac S. Peebles, Jr., of Augusta, for defendants in error.

An act approved March 30, 1937, Ga.L.1937, p. 738, provides in substance as follows: After approval of the act, in all counties of the State having therein a city with a population of not less than 60,342 and not more than 80,000, according to the United States census of 1930, there shall be created a permanent pension fund for employees of the county that are not elected by the people, except the county attorney. Said fund shall be accumulated only for the purposes set out in the act, and no warrant shall be drawn on said fund except for payments in accordance with the terms set out in the act. Three per cent. of the monthly salary of each employee of the county not elected by the people, except the county attorney, shall be deducted and deposited in the permanent pension fund. This provision is mandatory and shall govern every present and future employee. Any employee covered by the act who becomes permanently disabled from performing the duties of his position shall be paid from such pension fund one half of the salary of his or her position, payable at the same time other employees are paid. Permanent and total disability is defined, and method by which the eligibility of an applicant to this compensation shall be determined is fully set forth. Whenever any employee covered by the act shall have served twenty-five years as an employee of the county, he shall be permitted to retire from active service on his own motion, and shall thereupon receive from said fund one half of the pay of his or her position. The only evidence required to entitle such employee to this payment is proof that he or she has served efficiently for twenty-five years and is an employee at the time of retirement, the act providing that all of such payments shall be made if there is sufficient money in said fund with which to make them. While deductions from pay shall become effective immediately, none of the benefits shall be available until the expiration of three years from the date of the passage of the act. The treasurer of Richmond County shall be paid from said funds accumulated by virtue of the act one third of one per cent. of the wages and salaries as the deductions are made; and for such compensation the treasurer is required to keep complete records as to each employee, the amount paid by him or her, and a complete accounting as to receipts and disbursements in connection with said fund. The county commissioners as trustees of the fund are authorized to invest it as trust estates are allowed to invest under the law, or they may borrow the same by paying an interest rate of not less than four per cent. therefor. When an employee shall be discharged before he becomes eligible to receive payments from the fund, he shall be refunded one half the amount contributed to the fund by him during his employment.

The plaintiffs as employees and as citizens and taxpayers of Richmond County brought suit against Richmond County, J. N. Robinson, as county treasurer, and R. P. Mayo, Frank Hooper, Frank R. Miles, Ed Mertins, J. Bland Goodwin, as commissioners of roads and revenues of Richmond County, Georgia, and eight other named individuals described in the petition as employees eligible to receive benefits under the act above described. The petition set out the material portions of the act approved March 30, 1937, and alleged that it is unconstitutional and void in the following respects: In empowering the county commissioners to perform the duties conferred upon them by the act, it creates a special tribunal for Richmond County that does not exist in the other counties of the State, and thus offends article 11, section 3, paragraph 1 (Code, § 2-8401) of the constitution. It violates article 1, section 4, paragraph 1 (Code, § 2-401) of the constitution, which provides that laws of a general nature shall have uniform operation throughout the State, in that it does not operate uniformly throughout the State, and the classification on population as therein provided is not a proper classification. The petitioners were not afforded an opportunity to be heard on the question of making the three per cent. deduction in their salaries, and such deductions were and are being made in violation of the due process clauses of the State and Federal constitutions. Const.Ga. art. 1, § 1, par. 3; Const.U.S. amend. 14. The payments to contributing employees are unequal, and this and the exemption of the county attorney constitute violations of the equal protection clauses of the State and Federal constitutions. Const.Ga. art. 1, § 1, par. 2; Const.U.S. amend. 14. The act is violative of article 7, section 2, paragraph 1, 2 and 4 (Code, §§ 2-5001, 2-5002, and 2-5005) of the constitution. It violates article 7, section 6, paragraph 2 (Code, § 2-5402) of the constitution, which defines the purposes for which the General Assembly may authorize a county to levy a tax, in that the assessment on the plaintiffs' salaries constitutes a tax for the purpose of paying pensions; and such assessment is tax on income for which provision has been made by general law (Code, § 92-3101), in violation of the constitution. Code, § 2-401. Attached to the petition is a list of all county employees, and it is alleged that the funds that can be derived from the three per cent. assessment are wholly inadequate to pay the amount provided for by the act. Also, that the act is uncertain and indefinite in that it cannot be determined whether the twenty-five years' service required as a condition to voluntary retirement and receipt of payments under the act refers to services rendered before or after the effective date of the act.

To a judgment sustaining a general demurrer and dismissing the action the plaintiffs brought this writ of error.


1. An interpretation of that portion of the act contained in section 6, providing that 'whenever any employee (not elected by the people) of any county to which this Act is applicable, shall have served for twenty-five (25) years as an employee of the aforesaid county, he shall be permitted to retire from active service on his own motion, upon one-half of the pay of his or her position,' is made necessary by that portion of the petition assailing this provision upon the ground that it is indefinite and uncertain, in that it fails to state whether the twenty-five year period of service shall begin at or after the effective date of the act, or whether it embraces services rendered before the effective date of the act. The quoted language of the act reveals an ambiguity in this respect, and this makes it necessary to construe the language used. It is the duty of the court in construing an ambiguous statute to give it a construction, if the language permits, that will sustain the act, rather than a construction that will render it invalid. Fordham v Sikes, 141 Ga. 469, 81 S.E. 208; Cutsinger v Atlanta, 142 Ga. 555(3), 83 S.E. 263, L.R.A.1915B, 1097, Ann.Cas.1916C, 280; Bennett v. Wheatley, 154 Ga. 591, 115 S.E. 83. In 19 R.C.L. 726, § 33, it is said: 'The establishment of a pension system for municipal officers and employees, whereby, after serving a certain number of years or upon disablement from injuries received in the course of their duties, they are retired from active service and paid a certain proportion of their salaries for the remainder of their lives is not an unconstitutional disposition of public moneys for private use when applied to officers and employees who have entered or continued in the service after the system went into effect. The pension in such a case is not a gratuity, but a part of the stipulated compensation.' On the other hand, it is stated in the same paragraph that 'a statute which authorizes a...

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