Tucker v. Shoemaker

• Decision Date: 17 July 1919
• Docket Number: 1147.
• Citation: 99 S.E. 865,149 Ga. 250
• Parties: TUCKER, Ordinary, v. SHOEMAKER, Sheriff.
• Court: Georgia Supreme Court

99 S.E. 865

149 Ga. 250

TUCKER, Ordinary, v. SHOEMAKER, Sheriff.

No. 1147.

Supreme Court of Georgia

July 17, 1919

Syllabus by the Court.

The yearly compensation provided by the act of the General Assembly (Acts Ex. Sess. 1915, p. 85, § 16), for the performance of the duties imposed on sheriffs of the several counties of this state, is in the nature of salary, and its payment is therefore not dependent upon the performance by the officers of such duties (citing 7 Words and Phrases 6287).

[Ed Note.--For other definitions, see Words and Phrases, First and Second Series, Salary.]

Error from Superior Court, Dawson County; J. B. Jones, Judge.

Suit by J. W. Shoemaker, Sheriff, for writ of mandamus to compel W J. Tucker, Ordinary, to approve a claim filed by the sheriff. There was a judgment absolute for relator, and respondent brings error. Affirmed.

O. J Lilly, of Dahlonega, for plaintiff in error.

McMillan & Erwin, of Clarkesville, for defendant in error.

ATKINSON J.

1. It was contended that the compensation provided in the act of 1915 was for a particular service to be rendered by the sheriff, and that mandamus absolute should not be granted, because it appeared that the sheriff did not personally render the service contemplated by the statute, and could not do so by an agent or any one else, except a lawfully constituted deputy, and as a matter of fact no names were procured from the records of the collector of internal revenue and published in the county as provided in the act, and under such conditions no service had been rendered which would authorize the ordinary to approve the claim submitted by the sheriff. The whole case depends upon the effect of section 16 of the act of 1915. If the compensation therein provided for the sheriffs was in the nature of a salary and payable at all events, it would be immaterial whether the sheriff had rendered any service at all, or whether or not it was appropriate for him to act by an employed agent rather than personally or by a lawfully sworn deputy. In Collins v. Russell, 107 Ga. 423, 33 S.E. 444, it was said:

"There can be no question about the proposition that the legislative power of the state is absolute with respect to all offices that it creates, where no constitutional restriction is placed upon its power with reference to such offices. The incumbent of such an office does not hold the same by virtue of any sort of contract, express or implied, with the state or its law-making power, which gives him a vested right in the office. He accepts the office subject to the control of it by any legislative action in reference thereto which might thereafter be taken. The Legislature may abolish the office before his term expires, may modify its duties, may shorten or lengthen the term, and increase or diminish the salary or change the mode of compensation. See Butler v. Pennsylvania,

10 How. 402 [13 L.Ed. 472], Page 866 affirmed in Newton v. Commissioners, 100 U.S. 559 ; City Council of Augusta v. Swecney, 44 Ga. 463 . So well settled is this principle that further discussion or citation of authority on the subject is unnecessary."

In 22 R.C.L. § 216, p. 524, it is said:

"As stated elsewhere, the incumbent of an office has no property in it, for his right to exercise it is not based on any contract or grant, but is conferred on him as a public trust, to be exercised for the benefit of the public. Such salary as may be attached to any office is not given to the incumbent because of any duty on the part of the public to confer emoluments on him, but to enable him the better to perform the duties of the office, for without adequate compensation it cannot be expected that he will be able to give due attention to his official duties. In all cases the right to compensation is such only as may be given by law, and whether it is an annual salary or a per diem allowance, or consists of particular fees for particular services, depends on the will of the lawmakers. Hence it is that the courts are uniform in asserting that the right of a public officer to compensation for the performance of duties imposed on him by law does not rest on contract, either express or implied. Even the measure of compensation is arbitrary with the Legislature, and is not necessarily determined by the value of officer's services."

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