Thompson v. City Council of Augusta

• Decision Date: 16 October 1941
• Docket Number: 13866.
• Citation: 17 S.E.2d 161,193 Ga. 36
• Parties: THOMPSON v. CITY COUNCIL OF AUGUSTA.
• Court: Georgia Supreme Court

17 S.E.2d 161

193 Ga. 36

THOMPSON v. CITY COUNCIL OF AUGUSTA.

No. 13866.

Supreme Court of Georgia

October 16, 1941

Syllabus by the Court.

In the absence of an allegation to the effect that the action of the city authorities was not taken in good faith, but for the ultimate and actual purpose of creating a vacancy in order to permit the appointment of another person thereto, an employee of the City of Augusta who under the act of December 31 1937, Ga.L.Ex.Sess.1937-38, p. 938, had become a permanent employee, but who, by reason of the city's lack of funds with which to pay him, had been laid off, is not entitled to recover from the city the salary he would have earned had he remained employed, notwithstanding the city thereafter employed another person to fill the position (formerly held by the plaintiff), who is now discharging the same duties formerly performed by plaintiff, nor is he entitled to a mandamus to compel his reinstatement.

Thompson filed his petition against the City Council of Augusta in three counts, alleging in the first count that the defendant on March 7, 1927, passed an ordinance numbered 472, and attached a copy of said ordinance, which so far as its affects the petitioner and his allegations is embodied in three sections as follows:

'Section 3. The following shall be deemed employees of the City of Augusta and shall be appointed by the mayor, subject to the confirmation by the council, on the second Saturday in January, 1928, or as soon thereafter as practicable, for a term of three years, unless they are sooner relieved of their services by the mayor on approval by council, namely: [Among the list of these employees are meter readers.]

'Section 4. That said respective employees shall do and perform all duties which are now, or which may hereafter, be required of them by council or the mayor.

'Section 5. That the said employees immediately above named shall be entitled to trial by council for dereliction of duty disobedience of orders and misconduct in office but shall otherwise be under the immediate supervision and control of the mayor.' Section 6 repeals ordinance numbered 253 in so far as it is in conflict with these provisions.

Petitioner alleged that on September 15, 1937, he was employed by the defendant as a meter reader, on which date ordinance No. 472 was in full force and effect; that he immediately entered upon the discharge of his duties and remained in the employment of the city for more than one year, 'and thereby became on the 15th day of September, 1938, a permanent employee of the City of Augusta, within the meaning of the amendment to the charter of the City of Augusta' (Ga.Laws Ex.Sess.1937-38 [17 S.E.2d 162] p. 938); that in March, 1939, the city council directed that the personnel of the various departments be reduced because of lack of funds with which to pay the employees, and in pursuance of said order the waterworks committee, having jurisdiction of and operating the waterworks department, laid off or temporarily suspended the plaintiff and Charles Austin from the positions of meter readers; that during said period of time the plaintiff, under the terms of the permanent tenure act, was assigned to various positions in the waterworks department, including reading meters, delivering bills, and cutting off meters of customers who had failed or neglected to pay their bills; that petitioner's salary was $100 per month; that he was not discharged for cause within the meaning of the permanent tenure act, nor was his position abolished as provided for in said act, but was he suspended solely because of lack of funds with which to pay him; that by ordinance No. 890 the city council placed the control of meter readers under the waterworks committee of the council; and he attached a copy of said ordinance, dated January 21, 1933. He protested being ousted from his position, and refused to acquiesce therein, but was forced out by the waterworks committee acting under the authority delegated to it by the city council. Because of the foregoing facts the plaintiff has lost his wages for a period of thirteen months, or $1,300. He prayed that he have judgment for $1,300 with interest, and an additional $100 per month until the final judgment.

The second count, in addition to the foregoing allegations, avers that within a week after the plaintiff and Austin were laid off, Austin was reinstated by the waterworks committee, and has been paid his salary ever since; that Mack Seals was promoted from the position of bill deliverer to the position of cut-off man, whereupon the petitioner asked and demanded that he be reinstated to the position thus made vacant, but this was denied him; that instead one Baker was employed to fill that position; that Baker was a new employee; that the alleged acts of the defendant constitute a violation of the rights of the plaintiff under the permanent tenure act, which was an amendment to the charter of Augusta (cited above), in that the plaintiff was laid off not for cause and not because of the abolition of the position by a repeal of the ordinance under which he was employed. He prayed for the same judgment asked in the first count.

In count 3, after repeating the allegations in count 2, the plaintiff alleges that he has been illegally withheld from his position and therefore is entitled to the writ of mandamus requiring and directing the City Council of Augusta to comply with the statutes and charter of the City, particularly the permanent tenure act hereinbefore referred to, by reinstating him in his position. He prays for mandamus absolute against the defendant as to the relief sought; that the defendant be required to produce all of its records of the ordinance referred to, and its minutes and the minutes of the waterworks committee for February and March, 1939.

The defendant demurred generally to the petition, and specially to each count as follows: The plaintiff fails to show how many meter readers were provided for by the defendant; he fails to allege that he complied with the provisions of the permanent tenure act by filing with the clerk of council a written demand, within ten days of his suspension for an investigation, and for a written statement of the charges for which he was suspended; and for that reason his allegations that he was not discharged for cause within the meaning of the permanent tenure act, and that his position was not abolished, and that he was laid off solely because of lack of funds with which to pay his salary, are irrelevant immaterial and illustrate no issue involved. His allegation that he protested against being ousted is demurred to because he fails to show how he protested, whether his protest was in writing as provided by law, or verbal, and because he does not allege to whom his protest was made. Counts two and three alleging that Austin was reinstated, and that after Seals was promoted from his position as a meter reader the plaintiff demanded that he be reinstated, and that instead Baker was employed to the position vacated by Seals, the same are irrelevant and immaterial and illustrate no issue involved, and the plaintiff does not allege to whom his demand was made. The allegations that the acts of the defendant were in violation of the plaintiff's rights under the permanent-tenure act are demurred to because he fails to show that...