Newman v. McCullough

• Decision Date: 31 January 1948
• Docket Number: 16036.
• Citation: 46 S.E.2d 252,212 S.C. 17
• Parties: NEWMAN v. McCULLOUGH, Mayor, et al.
• Court: South Carolina Supreme Court

46 S.E.2d 252

212 S.C. 17

NEWMAN v. McCULLOUGH, Mayor, et al.

No. 16036.

Supreme Court of South Carolina

January 31, 1948

A. C. Mann, of Greenville, for appellants.

Leatherwood & Walker and J. W. Norwood, all of Greenville, for respondent.

TAYLOR, Justice.

The respondent herein, Carter Newman, Jr., prior to February 18 1942, was employed by the City of Greenville in the capacity of Director of Parks, which at that time was a part-time position. On the above date he was granted a leave of absence to enter the military service where he was finally discharged June 9, 1946. On July 9, following, he made written application to the City of Greenville to be permitted to return to his former position. The City officials did not act favorably upon said petition, and this action was brought in the form of a mandamus to compel his re-employment.

At the conclusion of the first hearing, the Honorable W. B. McGowan Judge of the County Court of Greenville, in his Order denying the relief sought by respondent, granted him ten days from the filing of his Order within which to re-apply; and should the City council fail to act favorably upon this application within twenty days, respondent had the right to apply again to the County Court of Greenville for an adjudication of his claimed right of restoration to the position as Director of Parks which had been changed during his absence from a part-time position to a full-time position with an increase in salary; and held the proceedings open for the purpose of finally determining the matter before the Court.

The second Order of Judge McGowan ordered that the appellants herein reinstate Mr. Newman to the position as Director of Parks as it now exists; and the City of Greenville now appeals to this Court upon exceptions which raise primarily the question of whether or not one City council can enter into an arrangement with a city official employed by council which will compel a future council to employ or accept the services of such official.

The National Selective Training and Service Act, 50 U.S.C.A.Appendix, § 301 et seq., does not apply to employees of states and municipal corporations, and Section 3075-1 of the 1942 South Carolina Code of Laws is not controlling in that it relates to officers having definite terms of office fixed by law; and Section 106 of the 1943 State Appropriation Bill, Act April 16, 1943, 43 Stat. at Large, p. 327, does not apply to city employees. The council against which this proceeding was brought, had passed no ordinance or resolution relating thereto. All such resolutions had been passed by the council in office when applicant was granted his leave of absence, and prior councils. Therefore, respondent's case must stand or fall on the acts of such councils.

Section 718 of the Greenville City Code provides as follows:

'Director of Parks--There shall be an official, or employee, known as Director of Parks whose duty it shall be to aid and assist the Park and Tree Commission in carrying out its duties as given it by the various sections of this article. He shall be elected by City Council on recommendation of the Commission to serve at the will of Council at such salary as may be fixed by the City Council. He shall also be directive head of the Municipal Swimming Pool and the Municipal Skating Rink in Cleveland Park. For the purpose of carrying out his duties he may be given police powers upon his subscribing to the proper oath.' (Emphasis added.)

Section 70 of the Greenville City Code reads as follows:

'Officers How Elected and Term of Office--All offices named in the foregoing section except those of Mayor, Aldermen and Recorder, together with all other offices now existing or hereafter created by City Council, shall be filled by each Council at the first meeting after its election, or as soon thereafter as may be practicable. All of said designated officials shall be elected to hold office at the pleasure of City Council, and until their successors are elected and qualified, but in no event beyond the life of the Council so electing, and any such officer may be removed from office by City Council at its pleasure; provided, that nothing in this section contained shall prevent City Council from abolishing any office by it created; and provided further, that the Mayor may suspend any official until a hearing may be had if charges are brought against him for drunkenness, serious neglect of duty, or malpractice in office; and provided still further, that when a new office shall be created, or an office shall become vacant from any cause, the person elected to fill such new or vacant office shall be chosen only until the next regular biennial election of officers. The Mayor and Aldermen shall be elected by the duly qualified electors of the City of Greenville in the manner and for the time provided elsewhere in this Code; the Recorder shall be elected by City Council for a term of four years as provided by the laws of the State of South Carolina.' (Emphasis added.)

On August 6, 1940, the then duly constituted council for the City of Greenville adopted the following resolution:

'Now, therefore, be it resolved by the Greenville City Council, that any employee of the City of Greenville who may volunteer, be called or drafted into any branch of the military service of the United States of America or any other branch of the National Defense, shall, on his release, have the right, if he so desires, to resume work in the position vacated by him on entering service, provided, he shall then be fully capable of discharging the duties required in said position.

'Be it further resolved, that any person or persons placed in positions made vacant by such employee shall be accepted and employed with the express understanding of the above right of the former employee to resume such position on his return.'

It is not contended that council passed the above resolution and entered into the resulting agreement with the respondent by reason of some special authority conferred upon it by statute, but under the authority vested in such bodies generally.

'Proper municipal officers may contract debts for services actually rendered and for money or goods had and received to the actual benefit of the town in the prosecution of authorized municipal work...