Fulton County v. Holland

• Decision Date: 14 July 1944
• Docket Number: 30533.
• Citation: 31 S.E.2d 202,71 Ga.App. 455
• Parties: FULTON COUNTY et al. v. HOLLAND.
• Court: Georgia Court of Appeals

31 S.E.2d 202

71 Ga.App. 455

FULTON COUNTY et al. v. HOLLAND.

No. 30533.

Court of Appeals of Georgia, Division No. 2.

July 14, 1944

Rehearing Denied July 25, 1944.

Syllabus by the Court.

E H. Sheats and W. S. Northcutt, both of Atlanta, for plaintiffs in error.

Alston Foster, Sibley & Miller, G. S. Peck, and C. O. Johnson all of Atlanta, for defendant in error.

PARKER Judge.

The exception is to the final judgment of the superior court awarding to Guy N. Holland, hereinafter referred to as the claimant, the total monthly retirement pension benefits of $76.25 claimed by him upon a basis of 30 years of service as an employee of Fulton County, which judgment sustained a certiorari and reversed the action of the Fulton County pension board denying the grant of a pension. The plaintiffs in error are the county and its several commissioners, and they will be referred to hereinafter as the county.

There is no dispute as to the number of years that the claimant performed services from which the county derived a benefit, nor is there any dispute as to the calculations determining the amounts of the benefits claimed. The county denies that the claimant was an employee of the county for the greater part of the 30 years served by him as stated, and denies that he was an employee of the county on March 20, 1943, when the last act of the General Assembly amending the Fulton County pension acts became effective. See Ga.Laws 1943, page 995 et seq. The county further contests as a separate issue the demand by the claimant for credit for his service as a deputy to a former clerk of the superior court while the fee system was in effect in the county, asserting that he was not entitled to that credit because the authority for such credit was first provided by the 1943 act (Sec. 16, "Section 25"), and that the claimant was not an employee of the county on the effective date of the act and could not avail himself of such service credit. It appears that the claimant's alleged service of 30 years was rendered by him in the following sequence: December, 1912, through December, 1916, as an assistant to Mr. Harvey Hatcher in the preparation of supplemental indexes to the public records of the county; from January 1, 1917, through December, 1924, as a deputy to the clerk of the superior court serving under the fee system; from January 1, 1925, through June, 1933, as a deputy to the clerk of the superior court serving under the salary system; and again from July 1, 1933, and continuing thereafter for the term of his employment as an assistant indexer under Mr. Hatcher. The claimant's last day of actual work on the index records was February 17, 1943, which was before the approval date of the 1943 amendatory act. The 1943 act contained a provision (Sec.

11 adding a new section--"Section 20"--to the original act) granting to the "present employees of the county," including those not directly under the control of the county commissioners, not having previously elected to obtain the benefits of the pension plan, the right to so elect within 60 days from the passage of the amending act, by giving written notice to the clerk of the county commissioners, and by paying into the pension fund such sum of money as would equalize the contribution with that of other employees similarly situated with respect to salary and length of service, together with an additional sum equal to 3 1/2% thereon to the date of election. No deductions for the pension fund had ever been made from the claimant's compensation and no contributions thereto were made by him until 91 days from the last day he actually worked and 60 days from the approval of the 1943 act. On May 13, 1943, the claimant filed with the clerk of the county commissioners written notice of his election to qualify under the 1943 act, and on May 19, 1943, he paid $124.37 into the pension fund. There appears to be no dispute over the correctness of the payment with respect to the total benefits claimed. On August 26, 1943, he filed his application for a pension, and in his application alleged his age as 67, his service as 30 years and his wages or salary as $137.50 per month, and that his health was totally and permanently impaired. If the claimant was an employee of the county during the 15 years he worked with Mr. Hatcher, and during the 15 years he worked as a deputy clerk, and if his belated election to obtain the pension benefits was effective, he is entitled to a retirement pension, since the statutes stipulate a service of 25 years or more and an age of 55 as requisites for retirement benefits. Sec. 4(a) of the 1943 act. But if his length of service is limited to the 22 years exclusive of his service as a deputy to a fee officer, he would be limited to a disability pension only, the latter being available for those with service of 15 years or more, and his maximum benefits under it would be $61.00 per month. Sec. 4(b) of the 1943 act. In making his application the claimant complied with the formal requirements for both the retirement and disability benefits. Other facts will appear in connection with our discussions and rulings contained in this opinion.

1. While the evidence does not show that the claimant possessed all of the usual attributes of a county employee, it indicates to us that his status is nearer like that of an employee of the county than an employee of a contractor with the county. It will be noted in the first place that the General Assembly authorized counties with a population of 75,000 to adopt for use by the clerk of the superior court, such system of indexing, for records of deeds and mortgages (other than as then provided by law) as would appear most desirable to them, and provided that the expense of complying with such a system should be paid out of the county treasury as one of the expenses of the superior court of said county. Ga.Laws, 1907, pp. 109, 110. The work of installing and maintaining such a new system of indexing was begun by and for a time continued by a regular deputy clerk of the superior court. The legislative act did not expressly empower the county to contract for the installation of the system. It authorized an adoption of a system that would be complied with by the clerk of the superior court, anticipating an expense in connection with such compliance, which expense was to be paid out of the county treasury. No written contract has ever been entered into between the county and Mr. Hatcher who has supervised the work since the year 1908. It is true that there are several entries on the minutes of the board of commissioners relative to this indexing work, but the Code, § 23-1701, provides that all contracts in behalf of the county must be in writing and entered on the minutes. An entry on the minutes alone is not sufficient. Murray County v. Pickering, 42 Ga.App. 739, 157 S.E. 343. See also Spalding County v. W. Chamberlain & Co., 130 Ga. 649, 61 S.E. 533, and Walker v. Stephens, 175 Ga. 405, 165 S.E. 99.

It was held in Henry v. Means, 137 Ga. 153, 72 S.E. 1021, that county commissioners had no authority, at the expense of the county, to employ an unofficial person to make a copy of certain deed books. While that case did not deal with a county affected by the 1907 act authorizing the adoption of a different index system, it took into account the fact that the general laws empower the clerks of the superior courts to maintain and replace index books. Under the general laws upon which the decision cited was predicated three things are required: An adoption of a "standard" system, a bearing of the expense by the county, and a compliance by the clerk. It would seem, therefore, that the only effect of the 1907 act was to permit an affected county to officially adopt and maintain an additional system, and thus the ruling in Henry v. Means, supra, would seem to apply to Fulton County and be applicable to this case insofar as the power to contract is involved. If a contract for the indexing work is ultra vires and illegal, then the system would necessarily have to be installed and maintained by county officers, deputies or official employees. There is no evidence that would, while he was engaged as an indexer, classify the claimant as an officer or a deputy in the usually accepted definitions of the terms. His duties were entirely clerical and routine. There was no necessity for an oath or a bond. From an examination of the various statutes pertaining to public servants, it appears that the taking of an oath and the giving of a bond are regarded as special rather than general requirements. It seems that all officers and most deputies are expressly required to take oaths. Bonds are required of some officers and of some deputies, but not from all of them. We find no general requirements for either prerequisite by servants or employees who are not officers or deputies.

Other indications of a county employee relation between the parties are that the hourly rate of pay of both the supervisor and the subordinates of the indexing staff were fixed and controlled by the county commissioners; and the supervisor was not given a blanket sum to be disbursed as he saw fit with an opportunity for him to make a profit; and he could not pay himself any more than the commissioners authorized and could not pay his assistants any less than the rates stipulated for them. Such conditions and the degree of control exercised by the county officials over the work and the workers are entirely antagonistic to a relation of independent contractor. The several excerpts from the minutes of the commissioners tend to lean toward a recognition of Hatcher as an employee of the county in serving as the supervisor of the indexing work, and not as a contractor to furnish the service. If Hatcher be...