MacNeill v. Bazemore

• Decision Date: 15 July 1942
• Docket Number: 14098.
• Citation: 21 S.E.2d 414,194 Ga. 406
• Parties: MacNEILL, County Treasurer, v. BAZEMORE.
• Court: Georgia Supreme Court

21 S.E.2d 414

194 Ga. 406

MacNEILL, County Treasurer, v. BAZEMORE.

No. 14098.

Supreme Court of Georgia

July 15, 1942

Rehearing Denied July 27, 1942.

Syllabus by the Court.

1. Under the act approved August 13, 1924, Georgia Laws 1924, p 87 et seq., the commissioners of Fulton County, having fixed the salary of a deputy sheriff at a certain sum, had the power to reduce it during the year for which said salary was fixed.

2. In a suit by a former deputy sheriff against the county treasurer of Fulton County, seeking mandamus to compel the payment of funds alleged to be due on his salary, it was not erroneous to strike on general demurrer a counter-claim of the treasurer seeking judgment against the petitioner for alleged overpayments on salary theretofore paid to him out of the county treasury.

J D. Bazemore brought suit against Mrs. Mabel Abbott MacNeill as treasurer of Fulton County, alleging that he was a deputy sheriff of the county for the year 1932, his salary for that year having been set at the sum of $400 per month, but that his salary was reduced on June 1 to $300 a month, and on September 1 to $250 per month, and on December 1 it was raised to $300 a month; all such changes in his salary being made by resolutions of the county commissioners; and that the total reductions below the original sum of $400 per month aggregated $750. By amendment the plaintiff alleged that a demand for said sum had been made by him, and was refused by the defendant.

The defendant filed an answer and a demurrer. In her answer she claimed that she was not indebted to the plaintiff in any amount, for the reason that the county commissioners had authority to reduce his salary at any time; and that even if it be conceded that his salary had been illegally reduced, he could not recover, for the reason that he was indebted to said county by reason of overpayments of salary made to him in the previous years of 1926, 1928, 1934, 1937, and 1938, said alleged overpayments aggregating $1,497.50. By amendment the defendant admitted that the overpayments during the months of November and December, 1937, arose by reason of the fact that the plaintiff had been promoted to the position of chief deputy sheriff, the normal salary for which position was that which he actually received. The defendant further admitted that the overpayment of $200 per month from January 1 to March 31, 1938, resulted from the fact that the sheriff of Fulton County had died at the first of January, and the plaintiff had been appointed as sheriff until a successor was elected and qualified on April 1.

The plaintiff demurred to the answer, The court sustained that demurrer, overruled defendant's demurrer to the petition as amended, and entered a mandamus absolute, requiring the defendant to pay to the plaintiff $750, plus interest from December 13, 1940, the date of the alleged demand and refusal. The defendant excepted to these rulings.

Ralph H. Pharr, W. S. Northcutt, and E. Harold Sheats, all of Atlanta, for plaintiff in error.

Chas. G. Bruce, Samuel L. Eplan and Arnold Kaye, all of Atlanta, for defendant in error.

GRICE Justice.

1. In our opinion, the commissioners of roads and revenues of Fulton County, having theretofore set the salary of Bazemore, deputy sheriff, at $400 per month had the right thereafter to reduce it. The question involves a construction of the act approved August 13, 1924, Ga.Laws 1924, p. 87 et seq., which changed from the fee to the salary system, in certain counties in Georgia the clerk, sheriff, ordinary, tax collector and tax receiver, the act applying to Fulton County. Section 3 thereof declares that the salaries of such officers 'shall be fixed' at least thirty days before January 1 of each year, and that 'such salaries shall be fixed each year at the time aforesaid and shall not be changed during said year.' It will be noted that section 3 by its terms does not apply to deputy sheriffs. Section 4 reads as follows: 'At least ten days before the first day of January in each year (beginning with January, 1925), the officers to whom this Act applies shall furnish to the county commissioners (or other county authorities having jurisdiction over revenues and roads in said county as described in Section 3) a statement as to the number of assistants or deputies required by each official, together with a recommendation as to the salaries, and shall likewise furnish a statement of the other expenses connected with the administration of each said office, and thereupon the said county commissioners (or other authority having charge of county roads and revenues) shall fix the salaries of such assistants or deputies, and shall set apart for expenses such funds as they may decide to be proper for each officer.' Here, it is to be observed, while it is declared that the county commissioners 'shall fix' the salary of the deputies, the section is silent as to any inhibition as to change, unless the words 'shall fix' require such a construction. Section 5 declares that, 'after said salaries and expenses are so fixed by the county commissioners (or other authority) it shall be proper and lawful for the Treasurer of the County, out of the county funds, on the first day of each month, to pay out the monthly portion of such salaries and expenses to each officer herein named, who shall retain his own salary, and disburse the salaries of assistants and deputies and expenses of the office.'

In support of the view that it was illegal to reduce during the year the salary of the deputy sheriff after it had been previously fixed, it is argued that since section 4 of this act makes it the duty of the sheriff to furnish to the commissioners a statement as to the number of deputies required, together with a recommendation as to salaries, and a statement of the other expenses connected with the administration of his office, and that 'thereupon' the commissioners shall fix the salaries of the deputies, this language implies that it is necessary to have a fixed amount for the county's budget for a tax guide. To unalterably fix at that time the amount of the salaries of the various deputies would not enable the county authorities to prepare an unchangeable county budget, for there are many expenses which are not ascertainable in advance; and even if they could be foreseen, the tax rate is determined by the amount of the county's taxable properties, and this can not be known at a period which is at least ten days before the beginning of the year. These statements furnished by the sheriff and other officers before the new year opens might assist the authorities in making an estimate of what the total expenditures of the county for the next year would be, but it is not persuasive of the contention that this portion of the section meant that the salaries of the deputies were thereupon to be fixed for the entire year to follow. If such a meaning is to be ascribed to the lawmakers, resort must be had to other language in the act to find it.

It is further argued that the words 'shall fix' in section 4 of the act, which apply to the salaries of the deputies mean the same thing as 'shall establish,' in view of the ruling in Culberson v. Watkins, 156 Ga. 185, 119 S.E. 319, 321. This court there had before it the act of 1915, Ga.Laws 1915, p. 35, which authorized the judges of the superior court of Fulton County to appoint for...