Employees Retirement System v. Lewis, 40531

• Citation: 136 S.E.2d 518,109 Ga.App. 476
• Decision Date: 27 February 1964
• Docket Number: No. 3,No. 40531,40531,3
• Parties: EMPLOYEES RETIREMENT SYSTEM of Georgia v. Swain A. LEWIS, Comm., et al
• Court: United States Court of Appeals (Georgia)

Page 518

136 S.E.2d 518

109 Ga.App. 476

EMPLOYEES RETIREMENT SYSTEM of Georgia v. Swain A. LEWIS, Comm., et al.

No. 40531.

Court of Appeals of Georgia, Division No. 3.

Feb. 27, 1964.

Rehearing Denied March 19 and April 2, 1964.

Syllabus by the Court

1. Unless made so by statute a sheriff's deputies and other employees are not employees of the county, and may not be so treated or recognized. A contract made under or pursuant to an unconstitutional statute does not bind county authorities.

2. Deputy sheriffs are not 'officers of a political subdivision' for whom Social Security payments are to be made by the county under the provisions of Code Ann. § 99-2101 et seq. (Ga.L.1953, Nov.Sess., p. 294 as amended) and under a contract between the county and the Employees Retirement System entered into in accordance with the Act when the deputies do not receive wages from the county, for by the terms of both the Act and the contract the payments are determined by wages paid.

This declaratory judgment action was brought by the State Employees Retirement System against Laurens County, and seeks to adjudicate the county's liability for Social Security payments on behalf of the deputies and others employed in the sheriff's office of that county for the three-year period of September, 1957 to January, 1960.

The allegations of the petition essentially are: In 1956 the Retirement System and the county amended their previous contract to bring sheriff's deputies and employees under Social Security and the county began making payments on these individuals, continuing until September, 1957, when the Supreme Court of Georgia determined that the 1952 Act, Laws 1952, p. 2396, placing the sheriff on a salary rather than a fee basis of compensation and making the sheriff's employees employees of the county was unconstitutional and void because it had been improperly advertised. Gay v. Laurens County, 213 Ga. 518, 100 S.E.2d 271. From the time of this decision until the end of 1960 the county did not report and pay Social Security for these persons. ¹

The Retirement System seeks a declaration that it is entitled to recover the Social Security payments for this period. The System's contract with Federal Social Security Administration requires it to make payments for all employees covered whether or not the System has collected for them on penalty of deduction from any Social Security money due the State. It is alleged that the System will be put in a position of having to pay Federal Social Security Administration for the deputies and other employees before their status as to Social Security coverage is determined.

The trial court, after overruling general and special demurrers, held that the persons involved were not employees of the county during the period in dispute. To this adverse ruling the System excepts.

Eugene Cook, Atty. Gen., James H. Terrell, Benjamin L. Johnson, Asst. Atty's Gen., Atlanta, for plaintiff in error.

H. Dale Thompson, Dublin, for defendant in error.

EBERHARDT, Judge.

This case presents an incidental aspect of the line of litigation beginning with Gay v. Laurens County, 213 Ga. 518, 100 S.E.2d 271, supra. See, Laurens County v. Keen, 214 Ga. 32, 102 S.E.2d 697; Gay v. Lewis, 215 Ga. 317, 109 S.E.2d 646; Gay v. Crockett, 217 Ga. 288, 122 S.E.2d 241; Gay v. Laurens County, 217 Ga. 594, 124 S.E.2d 81. The Employees Retirement System is seeking to have Sheriff Gay's deputies and employees adjudged employees of Laurens County for the period between the Supreme Court's declaration of the invalidity of the sheriff's salary legislation and the time a new sheriff was elected and a new salary bill was enacted.

There is no dispute here between the parties that the deputies and employees of a sheriff are not employees of a county under the common law, unmodified by statute. Drost v. Robinson, 194 Ga. 703(3), 22 S.E.2d 475. See MacNeill v. Wood, 198 Ga. 150, 31 S.E.2d 14.

In order to change the common law status of the deputies and employees, the Retirement System relies on the 1956 amendment to the contract between it and Laurens County. It is urged that, since the county agreed that the persons involved were its employees in 1956 and made contributions for them, the contract amendment is still binding on the county. Cases exemplified by Stewart v. Davis, 210 Ga. 278, 79 S.E.2d 535, are cited. However, cases such as Stewart are distinguishable because the contracts concerned were valid in their inception. Here, the language in the first Gay case 213 Ga. 518, 100 S.E.2d 271, supra, implies what the last Gay case, 217 Ga. 594, 124 S.E.2d 81, supra holds: that the 1952 salary Act was void ab initio.

Viewed in this light it becomes apparent that the System's contention is an ingenious attempt to invoke the doctrine of equitable estoppel in reverse, i. e., by asserting that since the contract became valid with the adoption of the Act of 1960, the county should not be permitted to assert invalidity for the period prior to that time. The application of equitable estoppel was specifically refused in first Gay, 213 Ga. 518, at page 523, 100 S.E.2d 271, at page 276, supra, where the court said, that the county's 'knowledge of [the Act's invalidity] and its opportunity to ascertain its invalidity was certainly equal to that of the defendant. * * * [I]t was the duty of the [county] before paying out county funds under the act to ascertain its validity.' Furthermore, Code § 89-903 provides that 'The public may not be estopped by the acts of any officer done in the exercise of a power not conferred.' Thus, while the 1956 contract amendment may have been entered into in good faith and payments made thereunder, this could not have the effect of estopping the county, requiring it to make further payments under the contract.

2. As to the deputy sheriffs involved, the System advances the additional contention that a statutory change in their common law status as the sheriff's employees has been made for Social Security purposes by the Act of 1953, as amended (Code Ann. § 99-2101 et seq.). The amended Act provides that 'The term 'employee' includes an officer of a political subdivision of the State.' Code Ann. § 99-2102(c). The conclusion drawn by the System is that a deputy is an 'officer of a political subdivision' within this definition.

The county is the relevant political subdivision because it is the contracting unit here. The term 'county officer' has been variously applied under different constitutional and statutory provisions. To be termed and classified as a county officer within the provisions of Art. XI, Sec. II, Par. I of the Constitution (Code Ann. § 2-7901), he must be: (1) elected by the qualified voters of the county; (2) hold office for four years; (3) be a resident of the county for two years; and (4) be a qualified voter. Houlihan v. Saussy, 206 Ga. 1, 5, 55 S.E.2d 557. The following have been held county officers within these constitutional requirements; an ordinary (Lee v. Byrd, 169 Ga. 622, 151 S.E. 28); a clerk of the superior court (McGill v. Simmons, 172 Ga. 127(1), 157 S.E. 273); a tax collector, tax receiver and sheriff (Truesdel v. Freeney, 186 Ga. 288, 292, 197 S.E. 783); a county treasurer (Bradford v. Justices of the Inferior Court, 33 Ga. 332; Massenburg v. Commissioners of Bibb County, 96 Ga. 614, 23 S.E. 998), and a coroner (McBrien v. Starkweather, 43 Ga.App. 818(4), 160 S.E. 548). Though not within the constitutional provisions the following have been held to be statutory county officers: a member of the board of commissioners and revenues (Rhodes v. Jernigan, 155 Ga. 523(2), 117 S.E. 432; Malone v. Minchew, 170 Ga. 687(2), 153 S.E. 773; Sweat v. Barnhill, 171 Ga. 294(9), 155 S.E. 18; Hulgan v. Thornton, 205 Ga. 753, 757, 55 S.E.2d 115), a county school superintendent ² (Culbreth v. Camady, 168 Ga. 444, 148 S.E. 102; Altman v. Taylor, 178 Ga. 689, 692, 173 S.E. 828; Marshall v. Walker, 183 Ga. 44, 187 S.E. 81); a member of the county board of education (Stanford v. Lynch, 147 Ga. 518, 94 S.E. 1001; Clarke v. Long, 152 Ga. 619, 111 S.E. 31), a county school commissioner--equivalent to a member of the board of education (McLain v. State, 71 Ga. 279, and a clerk of the board of county commissioners (Cooper v. State, 101 Ga. 783, 29 S.E. 22).

On the other hand, members of the board of tax assessors (Barnes v. Watson, 148 Ga. 822(4), 98 S.E. 500), a county registrar (Andrews v. Butts County, 29 Ga.App. 302, 114 S.E. 912), a justice of the peace (Davis v. Mercer, 48 Ga.App. 191, 192, 172 S.E. 669), a notary public and ex-officio justice of the peace (Overton v. Gandy, 170 Ga. 562, 153 S.E. 520), the Solicitor of the City Court of Dublin (Graham v. Merritt, 165 Ga. 489, 141 S.E. 298), the Marshal of the Municipal Court of Atlanta (Strickland v. Houston, 173 Ga. 615(2), 161 S.E. 262), and a grand juror (Butts v. State, 211 Ga. 16(2), 83 S.E.2d 610) have been held not to be county officers.

Is a deputy sheriff a 'county officer'? As we have noted above, a sheriff is so regarded. Truesdel v. Freeney, 186 Ga. 288, 292, 197 S.E. 783, supra. 'Sheriffs are authorized in their discretion to appoint one or more deputies, from whom they must take a bond with sureties.' Code § 24-2811. 'All sheriffs, deputy sheriffs, coroners, jailers, constables, and other officers of court shall be liable to all actions, suits, and disabilities whatever, which they, or either of them, shall incur in respect of any matter or thing whatever relating to or concerning their respective offices.' Code § 24-201.

'Deputy sheriffs and deputy jailors are employees of the sheriff, whom the sheriffs alone are entitled to appoint or discharge. Board of Commissioners of Richmond County v. Whittle, 180 Ga. 166, 178 S.E. 534. They have no duties save alone duties of the sheriff, which as his deputy and his agent they are by law authorized to perform. They are required to give bond for the faithful performance of duties,...