McCutcheon v. Smith

• Decision Date: 05 September 1945
• Docket Number: 15231.
• Citation: 35 S.E.2d 144,199 Ga. 685
• Parties: McCUTCHEON v. SMITH et al.
• Court: Georgia Supreme Court

35 S.E.2d 144

199 Ga. 685

McCUTCHEON v. SMITH et al.

No. 15231.

Supreme Court of Georgia

September 5, 1945

Syllabus by the Court.

1. For an employee of Fulton County, Georgia, to obtain the status of an incumbent under the civil service act of 1943 (Ga.L.1943, p. 971), it was necessary that the relationship to the county be that of an employee on the effective date of the act, to wit, June 1, 1943. A former employee discharged before the effective date obtained no status under the civil service act.

2. An act approved February 8, 1945, purporting to amend the above civil service act by declaring that a named person, who admittedly was discharged as a county employee on March 19 1943, and who was not again employed on or before June 1 1943, was an employee as of June 1, 1943, under the terms of the civil service act and entitled to a civil service status thereunder, is clearly an attempt by the legislature to perform a judicial function by construing a law, and offends article 1, section 1, paragraph 23 of the constitution of this State (Code, § 2-123), and is void.

Suit by Mrs. Gertrude Smith against A. B. Foster, sheriff, members of Fulton County civil service board in their official capacity the secretary of that board in her official capacity, and Mrs. Evelyn W. McCutcheon, alleging that the petitioner was and had been for more than two months a deputy sheriff matron 1, of Fulton County, Georgia, on June 1, 1943, the effective date of the civil service act of 1943, Ga.L.1943, p. 971, and qualified under said act to hold the position of matron 1. The petition set forth a series of minutes and documents executed by the defendants, showing that as of March 1, 1945, the official defendants removed the petitioner from her position as matron 1, the salary for which was $185 per month, and demoted her to matron 2 with a salary of $175 per month. No charges of any kind whatever were brought against the petitioner by any of the defendants, and her removal by them was contrary to the terms of the civil service act, and her removal and demotion, having been made without notice or a hearing, are in direct violation of sections 15 and 18 of the civil service act. The petitioner protested the action of the defendants and has demanded of each of them that she be allowed to perform the duties of the office of matron 1 and receive the compensation therefor. The defendant McCutcheon was not an employee of Fulton County on June 1, 1943, having been discharged from the position as matron 1 by the sheriff in March, 1943, prior to the effective date of the civil service act, to wit, June 1, 1943. She has not otherwise qualified under the civil service act to hold the position, never having taken and passed an examination as required by the act. By an amendment, an act approved February 8, 1945, p. 556, purporting to amend the 1943 civil service act, was attacked upon numerous constitutional grounds. The prayer was for mandamus absolute requiring the defendants to permit the petitioner to occupy the position of matron 1, perform the duties of deputy sheriff, matron 1, of Fulton County, and receive the salary therefor.

The defendants, McCutcheon and Foster, as sheriff, filed demurrers to the petition as amended, on the ground that no cause of action was alleged against the demurrants, and upon the further ground that the allegations failed to show that the petitioner is entitled to the relief prayed for against the defendants.

All the defendants answered, admitting the allegations of fact showing ouster of the petitioner from the office in question and the installation of the defendant McCutcheon therein as alleged, and admitting that the defendant McCutcheon was discharged from the position of matron 1 by the then acting sheriff, on March 19, 1943, but alleging that, under the original act and the act as amended in 1945, the defendant McCutcheon was and is entitled to receive all the benefits of the said act and to hold and perform the duties of the office of matron 1.

The petitioner demurred to each of the answers of the defendants upon the grounds that: (1) No defense whatever against the plaintiff's cause of action is set forth; (2) the said allegations, in so far as they attempt to set forth the purported act of the General Assembly approved February 8, 1945, as a defense, are without merit and constitute no defense to the plaintiff's action, for the reason that the act approved February 8, 1945, contravenes and violates the constitution of Georgia, and the demurrer then fully sets forth various provisions of the constitution which it is alleged are violated by the said act, among which is article 1, section 1, paragraph 23, Code, § 2-123, that 'The legislative, judicial and executive powers shall forever remain separate and distinct, and no person discharging the duties of one, shall, at the same time, exercise the functions of either of the others, except as herein provided.'

The case was tried by the judge without a jury upon an agreed statement of facts, in substance as follows: The defendant McCutcheon was appointed deputy sheriff of Fulton County in 1932, and was appointed to serve as chief matron at the county jail. She was discharged from the said position by the sheriff on March 19, 1943. Following her discharge, the petitioner was assigned the duty as chief matron, she being at the time a duly appointed and qualified deputy sheriff of the said county. The defendant McCutcheon served continuously from 1932 to 1943 as chief matron and was discharged on March 19, 1943. The position as deputy sheriff chief matron, of the Fulton County jail, became known under the civil service act as deputy sheriff, matron 1. There were only four positions of matron at the time of the civil service act, becoming effective on June 1, 1943. When the classification plan was adopted by the civil service board these four positions became known as deputy sheriff, matron 1, and three positions as deputy sheriff, matron 2. Mrs. W. T. Turner at the time the civil service act became effective on June 1, 1943 occupied one of the positions as matron, and she was duly appointed and qualified deputy sheriff, and her position became known as deputy sheriff, matron 2, under the classification plan. Both Mrs. Gertrude Smith and Mrs. W. T. Turner occupied without interruption the positions they held on June 1, 1943, at the time the civil service act became effective, until the action taken by the sheriff of Fulton County and the civil service board, described and set out in the petition in this case and the answer of the civil service board and the sheriff. The letters set out in the original petition and the excerpts from the minutes of the civil service board and the commissioners of roads and revenues are correct copies of the documents they purport to represent, and the acts described in said letters did occur. No charges or complaints of any kind were filed by any person against either Mrs. Gertrude Smith or Mrs. W. T. Turner with A. B. Foster, sheriff, or the civil service board; and no charges were filed against Mrs. Evelyn McCutcheon with the sheriff prior to her discharge on March 19, 1943, except such as are set out in the letters of the sheriff discharging her. Mrs. McCutcheon filed her claim of status under the civil service act as a condition to her being entitled to the benefits thereof, as alleged in the answer of the civil service board. This application was not recognized by the board, and she was not given the status applied for, the reason being that the civil service commission considered that she was not an employee of the county, they construing the act to mean that she was not entitled thereunder to civil service status because she was not an employee of the county on the effective date of the act. The civil service rules adopted by the Fulton County civil service board were approved by the commissioners of roads and revenues of Fulton County on September 27, 1943. The classification plan prepared by the Fulton County civil service board was approved and adopted by the commissioners of roads and revenues of the said county. The salary of the position of Mrs. Gertrude Smith as deputy sheriff, matron 1, was $185 per month, and the salary of matron 2 would be $175 per month. At the time the defendant McCutcheon...