Murphy v. West

• Citation: 52 S.E.2d 600,205 Ga. 116
• Decision Date: 14 March 1949
• Docket Number: 16486.
• Parties: MURPHY v. WEST et al.
• Court: Supreme Court of Georgia

52 S.E.2d 600

205 Ga. 116

MURPHY v. WEST et al.

No. 16486.

Supreme Court of Georgia

March 14, 1949

Rehearing Denied March 28, 1949.

Syllabus by the Court.

1. The General Assembly may make classification for the purpose of legislation and may enact general laws with reference to such classes. Where the basis of classification is that of population, in order to be a general law it is necessary that such classification shall be open to let in any county or city which by any future census might have the stipulated population.

2. An amendatory act may amplify or restrict the provisions of an existing law. The amendatory act will not be held to have repealed a provision of the original act by implication except in those cases where the conflict between the original act and the amendatory act is clear and the provisions of the two acts can not be harmonized.

J E. Murphy filed his petition for a declaratory judgment which, as amended, alleged in substance: Under an act of the legislature a pension plan was established for the employees of the City of Atlanta, and a board of trustees created, named persons constituting such board. The City of Atlanta, its comptroller, the board of trustees of the pension fund, and the individual members, are defendants in the case. On March 27, 1931, the plaintiff was employed by the City of Atlanta. He has continued in the employment of the city, and contends that he is now an employee of the city, in that he has never been removed for cause, or had any charges preferred against him, or been suspended as provided by law. His salary was a stated amount. The nature of his employment was keeping up the building, including plumbing, steam heat, refrigeration and electricity. He became seventy years of age in 1947. He was working under the supervision of L. Glenn Dewberry, Superintendent of the City Hall of Atlanta, and on December 29, 1947, he received a letter from Dewberry stating that the could no longer work after December 31, 1947, because he had reached seventy years of age. This letter was issued under and by virtue of a provision in the act approved March 28, 1947, and known as House Bill No. 329. This act of the legislature is a local act applying to the (City of Atlanta alone (and section 6 of the act is set out). Under such act, and section 6 thereof, if he is required to retire as of December 31, 1947, he is entitled to a pension when so retiring, whether he has served 25 years or not. During the time of his employment he has made no contribution to the pension fund of the city. On January 1, 1948, he reported for duty, ready, willing, and able to work. Since that date the city has not paid him his salary, neither has it paid him a pension. The city contends that he is no longer employed by it, and not entitled to his salary; and not having made any contribution to the pension fund, that he is not entitled to receive a pension. All employees of the city are under civil service, and not subject to removal except for cause as provided by law. He is entitled to his salary, in that he is and has been ready, willing, and able to work, and has reported for work.

The petition further alleged: The act of the General Assembly of 1947, p. 1635, is unconstitutional, null, and void, in that it violates the constitution, art. 3, sec. 7, par. 15 (which is quoted), in that no notice of intention to apply for the act was published in the manner required, no certificate by the publisher is attached to the enrolled bill, and no affidavit by the author of the bill to the effect that notice had been published is attached and made a part of the bill as enrolled. The act of the legislature requiring retirement of employees at the age of seventy years is null and void, in that it is class legislation, whereby it includes all employees who have attained the age of seventy years and does not affect those employees who have not attained the age of seventy years, and is not uniform in its operation, in violation of the constitution, art. 1, sec. 1, par. 2, which provides: 'Protection to person and property is the paramount duty of government, and shall be impartial and complete'; and is in further violation of art. 1, sec. 5, par. 2, which provides: 'The enumeration of rights herein contained as a part of this Constitution shall not be construed to deny to the people any inherent rights which they may have hitherto enjoyed.' Section 6 of the 1947 act denies to him his right to work and earn a living, and it is not impartial, in that it allows persons who have not reached the age of seventy years the right to work for the city, and denies such right to those who have reached the age of seventy years. He contends: (1) that he is entitled to his salary for the months of January and February, 1948, because he has never been legally discharged, and the act forcing him to retire at the age of seventy years in unconstitutional for the reasons stated; (2) if such act of the legislature is valid, then under section 6 of the act he is entitled to a pension equaling 17/25 of the amount of the salary he was drawing as of January 1, 1948; and (3) if he is entitled to the pension, it should be paid by the city or from the pension fund. The City of Atlanta and the board of trustees of the pension fund have denied him the right to either of the reliefs claimed by him, and there is an actual controversy between him and the city. All of the defendants named are interested in the case and the subject-matter thereof.

The prayers were: (a) that he 1947 act be declared unconstitutional, null, and void, and the plaintiff declared entitled to his salary; (b) in the event the act is constitutional, then it be declared that, by reason of section 6 of the act, the plaintiff is entitled to his pension in the amount of 17/25 of his salary as of January 1, 1948; (c) if he is entitled to a pension, then it be declared whether it shall be paid by the board of trustees of the pension fund from such fund, or be paid directly by the city; (d) upon the declaration of his rights, that he have judgment ordering the sums to be paid to him; and (e) for other and further relief.

The general demurrers of the defendants, as renewed after the amendment, were sustained, and the exception here is to the sustaining of the demurrers.

Noah J. Stone, of Atlanta, for plaintiff in error.

J. C. Savage, J. C. Murphy, J. M. B. Bloodworth and J. E. Feagin, all of Atlanta, for defendants in error.

HEAD Justice.

1. The plaintiff in error contends that the act approved March 28, 1947, Ga.L.1947, p. 1635, amending an act approved August 20, 1927, Ga.L.1927, p. 265, is unconstitutional; and that the requirement of the amendatory act, that he be retired at the age of seventy years, is therefore null and void, and he is entitled to compensation from the City of Atlanta. If it should be determined that the amendatory act is constitutional, then the plaintiff in error contends that he is entitled to a pension under section 6 of the amendatory act.

The plaintiff in error contends that the amendatory act of 1947 is a local or special law, and that it was enacted in violation of the constitution, art. 3, sec. 7, par. 15, Code Ann. § 2-"1915, providing for the advertisement of all local or special acts. Neither the original act of 1927, nor the amendatory act of 1947, is prima facie a local or special act. The original act of 1927 by its caption provides in part: 'An Act to provide...