Lentz v. City Council Of Augusta, 23095.

• Decision Date: 17 February 1934
• Docket Number: No. 23095.,23095.
• Citation: 173 S.E. 406,48 Ga.App. 555
• Parties: LENTZ . v. CITY COUNCIL OF AUGUSTA.
• Court: Georgia Court of Appeals

48 Ga.App. 555

173 S.E. 406

LENTZ .

v.CITY COUNCIL OF AUGUSTA.

No. 23095.

Court of Appeals of Georgia, Division No. 2.

Feb. 17, 1934.

Syllabus by Editorial Staff.

Error from Superior Court, Richmond County; A. L. Franklin, Judge.

Action by C. S. Lentz against the City Council of Augusta. Judgment for defendant, and plaintiff brings error.

Affirmed.

Curry & Curry, of Augusta, for plaintiff in error.,

Wm. T. Gary, of Augusta, for defendant in error.

Syllabus Opinion by the Court.

JENKINS, Presiding Judge.

1. "Where the tenure of an office la not prescribed by law, the power to remove is an incident to the power to appoint. In such case the appointee holds at the pleasure of the appointing power, although it attempts to fix a definite term; and no formalities, such as the preferring of charges or the granting of a hearing to the incumbent, are necessary to the lawful exercise of the authority of removal." Wright v. Gamble, 136 Ga. 376, 71 S. E. 795, Ann. Cas. 1912C, 372, case notes 35 L. R. A. (N. S.) 866. In the case of a public office established by law with a prescribed tenure, the rule as to notice and hearing is otherwise. Rurney v. Mayor, etc., Council of Boston, 24 Ga. App. 7 (2), 100 S. E. 2S, and cases cited. These principles are applicable to municipal officers. A municipal employee, as distinguished from an officer, employed by a city under a lawful contract of employment for a fixed term, or a term renewable automatically or by implica tion, cannot be legally discharged before the end of the term as so fixed or renewed, in the absence of a breach of contract by the employee, on account of unfitness or other cause. 43 C. J. 911 (§ 1669).

2. The distinction between a public officer and a public employee is often so close that it is difficult for any inflexible abstract test to separate in all cases the two groups with their respective legal rights. "An individual who has been appointed or elected in a manner prescribed by law, who has a designation or title given him by law, and who exercises functions concerning the public, assigned to him by law, is a public officer." Bradford v. Justices of Inferior Court, 33 Ga. 332 (2). The term "office" has reference to functions conferred by public authority and for a public purpose. Thus, a position which has been specifically created by law for the discharge of designated public functions is a public office, and the properly selected incumbent thereof is a public officer. The dignity of the position, the language used in providing for the selection of the incumbent,...