Foster v. Brown

• Decision Date: 08 May 1945
• Docket Number: 15181,15184.
• Citation: 34 S.E.2d 530,199 Ga. 444
• Parties: FOSTER, Sheriff, v. BROWN et al. BROWN et al. v. FOSTER, Sheriff.
• Court: Georgia Supreme Court

34 S.E.2d 530

199 Ga. 444

FOSTER, Sheriff, v. BROWN et al.

BROWN et al. v. FOSTER, Sheriff.

Nos. 15181, 15184.

Supreme Court of Georgia

May 8, 1945

Rehearing Denied June 7, 1945.

SYLLABUS BY THE COURT.

Both the chief deputy sheriff amendment and the civil service amendment to the constitution, proposed by the General Assembly, Ga.L.1939, pp. 33 and 36 respectively, and subsequently adopted by the people, were permissive in character and left to the will and discretion of the legislature the question whether legislation under authority of either or both would be enacted in pursuance thereof. Under the terms of the statute passed in pursuance of the chief deputy sheriff amendment, the tenure of such officer was necessarily fixed at the will of the sheriff as authorized by that constitutional amendment. The tenure thus fixed by statute in pursuance of that amendment could not thereafter be enlarged by the legislature except by putting such officer under civil service, as permitted under the other and different constitutional amendment authorizing it to do so. After the legislature had created the office with a tenure such as had been authorized by the constitutional amendment permitting its creation, it still lay within the discretion of the legislature, under the express authority of another constitutional amendment, to put such office under civil service and to fix the tenure of such office previously created under civil service, and thus constitutionally extend the tenure, which could not otherwise be changed by statute.

(a) In such a case, no constitutional conflict appears which needs to be reconciled, but the two authorizations merely provide two separate procedures, one for the ordinary tenure of the office in the absence of civil service, and the other such tenure as the legislature may prescribe should it see proper to adopt civil service. But even were the constitutional provisions antagonistic, since the authority delegated to the legislature was merely permissive, the last expression of the General Assembly should be given controlling effect.

DUCKWORTH J., and BELL, C. J., dissenting.

Houston White, of Atlanta, for plaintiff in error.

Harold Sheats, W. S. Northcutt, John L. Westmoreland, and John H. Hudson, all of Atlanta, for defendants in error.

The General Assembly at the 1939 session, Ga.L.1939, p. 33, proposed a constitutional amendment authorizing the legislature to enact laws providing that the ordinary, sheriff, clerk of the superior court, tax receiver, tax collector, and county treasurer of Fulton County might name from their assistants one to be designated chief clerk, chief assistant, or chief deputy; the appointment to be made by the persons occupying such respective offices and to be for such term as the person making the appointment may designate, the term in no event to extend beyond the term of the person making the appointment. The proposed amendment further authorized the General Assembly to provide 'that in said County of Fulton in the event a vacancy occurs in any of the offices here named, * * * such designated chief clerk, chief assistant or chief deputy may fill out the unexpired term of the person making the appointment, upon qualifying for such office as provided by law.' At the same session of the legislature, and approved on the same date, the General Assembly proposed another amendment to the constitution, Ga.L.1939, p. 36, providing that: 'The General Assembly shall have the authority, however, to enact laws creating a Civil Service Commission and establishing a Civil Service System and/or Merit System for county employees and employees and deputies of county officers of Fulton County, including deputies and employees of the Sheriff, Tax Collector, Tax Receiver, Treasurer, Clerk of the Superior Court, and Ordinary of said county, and in connection therewith to define and prescribe the powers and duties of such Civil Service Commission and such employees and deputies; and to enact laws defining the relation, obligation, duty, and responsibility of employees and deputies under civil service classification with respect to county officers, and further define the relation, responsibility, obligation, and duty of officers of Fulton County with respect to employees and deputies coming under civil service classification; to enact laws establishing tenure of office for such employees and deputies and to provide in what manner and for what reasons they may be removed or suspended from office; and to provide exceptions and exemptions to the operation of said laws.' Both of the foregoing amendments to the constitution were ratified by the people of Georgia at the general election held in June, 1939. At the 1939 session of the General Assembly, Ga.L.1939, p. 565, the legislature, in pursuance of the first mentioned amendment, adopted an act requiring the sheriff, tax receiver, tax collector, and county treasurer to name from among their respective assistants a chief deputy, such appointment to be at the will and pleasure of the person making the same, the tenure not to extend, however, beyond the term of the person making the appointment, this statute to become effective upon the ratification of the constitutional amendment authorizing it. Some four years thereafter, in 1943, Ga.L.1943, p. 971, the General Assembly, in furtherance of the constitutional authority under the second constitutional amendment, Ga.L.1939, p. 36, adopted an act creating a civil service system in Fulton County and establishing a tenure of office for employees of Fulton County, including employees and deputies of the sheriff of Fulton County. Section 5 of this 1943 act defines the classified and unclassified service and provides: 'The Unclassified Service shall consist of the following: (a) Officers elected by the people and persons appointed to fill vacancies in such elective offices. (1) Provided in the offices of the Clerk of the Superior Court, Tax Receiver, Tax Collector, Sheriff and Ordinary, if the Chief Deputy in any of said offices should elect not to be a candidate in the succeeding election, he shall revert to his former status in the classified service.' After listing other employees in the unclassified service, section 5(2) provides: 'The Classified Service shall include all other public officers and employees in the employ of Fulton County now or hereafter employed, including deputies and employees in the office of the Clerk of the Superior Court, Sheriff, Tax Collector, Tax Receiver, Ordinary, Treasurer, Civil Court of Fulton County, Criminal Court of Fulton County, Tax Assessors, Juvenile Court, Adult Probation Office, Employees of the Sanitary Department, and others not placed in the unclassified service.' Section 6 of the act of 1943 provides that a person holding a permanent position in the classified service of Fulton County who, on the effective date of the act (June 1, 1943), had held such position for a period of six months immediately preceding such effective date, should be deemed to be qualified for such employment and be entitled to receive a regular permanent appointment in accordance with the provisions of the act.

When the civil service act of 1943 was adopted, Mount was sheriff of Fulton County, and Grimes was the designated chief deputy sheriff, having been appointed by Sheriff Mount on January 27, 1942. Grimes continued to hold the office of chief deputy continuously from the date of his appointment (January 27, 1942) until the death of Sheriff Mount on or about April 24, 1944. Grimes did not become a candidate for the office of sheriff, but proceeded to 'fill out the unexpired term,' upon 'qualifying for such office,' that is, taking the sheriff's oath and giving bond as required by law, as he was specifically required to do both by the constitutional amendment and the statute passed in pursuance thereof. He continued to perform the duties of sheriff until January 1, 1945, when he was succeeded by Foster, the plaintiff in error in this case, who was elected for a term of four years beginning January 1, 1945, the election being the regular quadrennial general election held on the first Tuesday in November of 1944. When Foster assumed the office of sheriff on January 1, 1945, and qualified by taking the oath of office and giving the required bond, he immediately issued a public statement to the effect that he did not recognize Grimes as chief deputy sheriff, but contended that he had the right to appoint a chief deputy without regard to civil service regulations. On the other hand, Grimes publicly claimed to be chief deputy sheriff, offered to give bond, and from January 1, 1945, until the present time has offered to perform all duties assigned to him by the sheriff, including those customarily performed by the chief deputy sheriff, and has presented himself daily to the sheriff for his instructions and orders, but the sheriff has refused to accept his services or to permit him to render any service. On January 26, 1945, sheriff Foster issued an administrative or executive order in which he sought to name Smithwick as chief deputy sheriff. Subsequently he presented the order at a meeting of the county commissioners, and demanded that Smithwick be recognized as chief deputy and that he receive the salary accorded to that office. The county commissioners refused to record the order naming Smithwick as chief deputy, refused to recognize him as such, and refused to authorize payment to Smithwick of the salary customarily paid to the chief deputy sheriff. Whereupon the sheriff filed a petition

for mandamus in Fulton superior court, seeking to compel the county commissioners to record his proffered appointment and to recognize Smithwick as chief deputy sheriff. The...