Tucker v. Shoemaker

• Citation: 99 S.E. 865,149 Ga. 250
• Decision Date: 17 July 1919
• Docket Number: (No. 1147.)
• Parties: TUCKER, Ordinary v. SHOEMAKER, Sheriff.
• Court: Supreme Court of Georgia

149 Ga. 250

99 S.E. 865

TUCKER, Ordinary

v.SHOEMAKER, Sheriff.

(No. 1147.)

Supreme Court of Georgia.

July 17, 1919.

(Syllabus by the Court.)

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.

The writ of error is to a judgment absolute rendered by the judge, to whom the case was submitted without the intervention of a jury. The suit was instituted by the sheriff of Dawson county against the ordinary of the county for the writ of mandamus to compel the ordinary to approve a claim filed by the sheriff for payment of $25 from the general funds of the county, alleged to be due the sheriff under the provisions of section 16 of the act of 1915 (Acts Ex. Sess. 1915, pp. 77, 85) as compensation for service as prescribed in that act for the year 1917. The ordinary defended the suit on the ground that the sheriff had not rendered any service for which the county was liable. The act in question imposed upon the sheriff of each county in the state the duty of procuring from the internal revenue collector's office the names of all persons resident within the jurisdiction of such sheriff, who had obtained licenses to sell intoxicating liquors, etc., and to cause such names to be published in the local paper in a specified manner, and that for such services the sheriff should be paid annually $25, and the cost of advertisement, etc. The sheriff submitted evidence that he had employed an attorney, resident in Atlanta, to examine the records of the collector of internal revenue, who each month furnished written reports to the effect that there were no names of persons registered from the county of Dawson. The only proof relied on to show examination by the attorney were certain letters and an ex parte affidavit. A motion was made to exclude such letters and affidavit from evidence, on the ground that they were irrelevant and hearsay. No ruling was made upon the admissibility of the evidence, and the judgment absolute was rendered without making any reference to such motion. The only assignment of error was that the judgment was contrary to law and was without evidence to support it.

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 perse ally 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, 1(37 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 bold 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. Pennsyl-vania, 10 How. 402 , affirmed in Newton v. Commissioners, 100 U. S. 559 ; City Council of Augusta v. Sweeney, 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...