MacNeill v. Wood

• Decision Date: 06 June 1944
• Docket Number: 14903.
• Citation: 31 S.E.2d 14,198 Ga. 150
• Parties: MacNEILL, County Treasurer, et al., v. WOOD, Director of Department of Public Welfare, et al.
• Court: Georgia Supreme Court

31 S.E.2d 14

198 Ga. 150

MacNEILL, County Treasurer, et al., v. WOOD, Director of Department of Public Welfare, et al.

No. 14903.

Supreme Court of Georgia

June 6, 1944

Rehearing Denied July 18, 1944.

Syllabus by the Court.

Employees of Fulton County Welfare Department are not employees of Fulton County in contemplation of the Constitution, art. 7 sec. 6, par. 2, as amended by resolution passed by the General Assembly on March 24, 1939, and ratified on June 6 1939. That portion of the act approved March 20, 1943 amending the act of 1939 (Ga.L.1939, p. 571), which puts the employees of Fulton County Welfare Department under the terms of the County Pension Act offends the above provision of the Constitution and is void.

Douglas Wood, director of the Department of Public Welfare of Fulton County, and some forty others, employees of that department, filed in Fulton superior court a petition for mandamus against Mabel Abbott MacNeill, as treasurer of Fulton County and as ex officio treasurer of the employees' pension fund of Fulton County, seeking to require the defendant to accept payments from the petitioners to apply on a pension fund. All of the petitioners except one were employees of the County Welfare Board, and this exception raises no issue in the determination of the case.

It is alleged that the petitioners are employees of Fulton County, and as such are covered by the pension laws of Fulton County (Ga.L.1939, p. 572, as amended in 1943 by Ga.L.1943, p. 994). It is also alleged that the treasurer is required by the terms of the act as amended to deduct from the petitioners' salaries contributions to the pension fund, which includes a special contribution to establish a pension in favor of the wives of the petitioners in the event of the death of the petitioners under conditions which would permit the payment of the pension as provided by the act as amended; and that the defendant refuses to accept contributions, which had been deducted from the salaries of the petitioners, on the ground that petitioners are not employees of the county in contemplation of the act of the legislature as amended, and on the further ground that the constitutional amendment authorizing Fulton County to levy taxes for pension purposes refers only to county employees and not the widows of the employees. The amended petition sets out in detail how the contributions from the employees to the pension fund are to be paid to the treasurer from their salaries. It alleges that the Fulton County Board of Public Welfare is organized pursuant to and derives its authority from the Welfare Reorganization Act of 1937, codified as Chapter 99-5 in the Code of 1933, Ann.; and that, pursuant to the authority contained in the Code, § 99-508, the State Department of Public Welfare reimburses Fulton County Department for 95 per cent. of the salaries expended in connection with the administration of the social service program of the county, and with this exception all the funds available to the County Board of Public Welfare or spent by it are derived from the county taxes levied for the support of paupers. The petition states that the defendant is by law the custodian of the county pension fund, and it is her duty to receive and disburse all funds established in the county for pensions to the county employees, and by § 20, which was added to the County Pension Act by an act approved March 20, 1943, Laws 1943, p. 1012, the petitioners as employees of the Welfare Department are authorized to elect to participate in the pension provided by the act for employees of the county; and that petitioners have made such an election, and have had deducted, by the county administrator and auditor of the Public Welfare Department, from their salaries the sum of $128.39, which has been tendered to the defendant, accompanied by a list of the employees from whose salaries the deductions were made, together with a written election of each such employee to participate in the pension fund, which tender was declined by the defendant. The defendant's general demurrer to the petition as amended attacks the constitutionality of the Fulton County Pension Act, above referred to, in so far as it includes the employees of the Fulton County Welfare Department, and in so far as it provides for the payment of pensions to the widows of such employees. The defendant excepted pendente lite to the judgment overruling her demurrer to the amended petition; and upon a hearing, a stipulation of facts was entered into, agreeing that the allegations of facts in the amended petition were true except the allegation that the petitioners were employees of the county, it being agreed that this was a question of law for determination by the court. A judgment was rendered, granting the relief sought, to which the defendant excepts, and also assigns error on the exceptions pendente lite to the overruling of her demurrer.

E. Harold Sheats, of Atlanta, for plaintiffs in error.

Helen Douglas Mankin and W. S. Northcutt, both of Atlanta, for defendants in error.

DUCKWORTH Justice.

On March 24, 1939, the General Assembly proposed an amendment to art. 7, sec. 6, par. 2 of the Constitution of Georgia, which was ratified at a subsequent general election held on June 6 1939. The amendment provides: 'The General Assembly shall have authority, however, to enact laws authorizing the County of Fulton and the governing authorities of the schools of said county, to create a retirement and pension fund and a system of retirement pay for county employees, and for county school employees, and to levy taxes for that purpose; and to authorize the said county and the said county school authorities to enact laws, rules and regulations for the qualifications of such employees for benefits from such fund.' Ga.L.1939, p. 39. It will be seen that this amendment provides for a retirement fund and pensions for 'county employees' and for 'county school employees,' and authorizes the levy of taxes for that purpose. The act approved March 20, 1943, Ga.L.1943, p. 995, amends the original Fulton County Employees' Pension Act of 1939. Section 11 of the amending act repeals § 20 and enacts a new § 20 and provides that employees of the welfare department who elect to do so may obtain the benefits of the act. It is under these provisions of the amendment that the petitioners assert their right to the benefits of the pension act. While § 5 of the amendment requires that contributions of 2 1/2 per cent. of their salaries be made by the county employees to the pension fund, § 8 of the original act requires the commissioners of roads and revenue of Fulton County to levy and collect taxes and appropriate the same to supplement the pension fund, in an amount 'which shall be sufficient at all times to pay any and all pensions which may be granted under * * * this Act.' It is thus seen that public funds procured by levying and collecting taxes are inseparately mingled with the contributions made by the employees, and, hence, the constitutional right to pay the benefits under the pension law must be tested by the right of the county to expend public funds for those purposes, despite the contributions made by the employees. The constitutional amendment upon which the law depends specifies county employees and...