Twiggs v. Wingfield

• Citation: 95 S.E. 711,147 Ga. 790
• Decision Date: 11 April 1918
• Docket Number: 599.
• Parties: TWIGGS v. WINGFIELD ET AL.
• Court: Supreme Court of Georgia

95 S.E. 711

147 Ga. 790

TWIGGS v. WINGFIELD ET AL.

No. 599.

Supreme Court of Georgia

April 11, 1918

Syllabus by the Court.

A public officer takes his office cum onere; and so long as he retains it he undertakes to perform its duties for the compensation fixed, whether such duties be increased or diminished. He cannot claim extra compensation for the performance of additional work within the line of his official duties, unless additional compensation is provided by competent authority.

A member of the flood commission of the city of Augusta cannot legally contract with the commission for the performance of duties which. as a member of such commission and as commissioner of public works for the city of Augusta and ex officio city engineer, it is made his official duty to superintend and supervise on behalf of the city. Such a contract is contrary to public policy and illegal. The court erred in refusing an interlocutory injunction.

Error from Superior Court, Richmond County; H. C. Hammond, Judge.

Petition for injunction by A. J. Twiggs against Nesbit Wingfield and others. There was a judgment for defendants, and plaintiff brings error. Reversed.

Pierce Bros., of Augusta, for plaintiff in error.

C Henry & R. S. Cohen and Isaac S. Peebles, Jr., all of Augusta, for defendants in error.

GEORGE J.

Albert J. Twiggs, a citizen and taxpayer of the city of Augusta filed a petition for injunction against the city council of Augusta, H. H. Morris, its treasurer, and Nesbit Wingfield commissioner of public works and ex officio a member of the flood commission of that city. The purpose of the petition was to restrain the city council of Augusta and its treasurer from paying to Nesbit Wingfield a salary of $2,400 per annum as engineer for the flood commission of the city, and to restrain him from receiving and collecting this salary. The case was submitted upon the petition and the answers, with the exhibits attached. An interlocutory injunction was denied, and the plaintiff excepted.

The facts are not in dispute. A disastrous flood visited the city of Augusta in August, 1908. The city council, by ordinance adopted on September 28, 1908, created a flood commission for the purpose of affording protection against the recurrence of such disasters. Under this ordinance the sum of $5,000 was appropriated, to be expended by the commission in carrying out this purpose. In April 1909, the city council, by ordinance, so enlarged the powers of the flood commission "that the flood commission heretofore created shall have full power and authority to adopt a plan for the protection of the city of Augusta and county of Richmond from damage by floods and freshets, and to execute said plan in such manner and upon such terms as may seem proper and advantageous to the said commission; that said commission is hereby vested with power and authority forthwith to provide for the construction of any embankments, levees, or other means of protection to said city and county from floods and freshets at and along the river front of said city, at and along the banks of the canal now owned and operated by the city council of Augusta in said city and county, to raise and strengthen the said banks of the said canal, and generally, to adopt and execute such plan or plans of protection against floods as may be advantageous and feasible." This ordinance appropriated $100,000, for the purpose of carrying out the powers and executing the plans therein provided. By the ordinance the commission was composed of the mayor, the city attorney, commissioner of public works, and ex officio city engineer, and three members of council. The commission employed Nesbit Wingfield, the commissioner of public works and ex officio city engineer and ex officio a member of the flood commission, "to carry on this work of preparing plans and specifications and advertising bids that were incident and necessary to the work of affording protection to the city of Augusta," and provided that he be paid a salary of $150 per month for such services, which salary was later increased to $200 per month. After the passage of the ordinance set out above, the General Assembly passed an act creating what is termed the flood commission of the city of Augusta. Acts 1909, p. 556, § 3. This act eliminated the members of council, but named as members of the flood commission three members of the then city council of Augusta, and expressly retained as members "ex officio the mayor of the city of Augusta, and ex officio the city attorney of the city of Augusta, and ex officio the commissioner of public works of the city of Augusta." The act expressly repealed "such portions of the charter of said city, and such portions of the ordinances of said city, and all laws and parts of laws in conflict" therewith. Section 347 of the Code of Ordinances of the city of Augusta is as follows:

"Council shall elect an officer to be known as the comissioner of public works, who shall be a skilled engineer and practical surveyor, and any competent person, whether a resident of the city or not, shall be eligible; the commissioner of public works shall be ex officio city engineer."

Section 348 of the City Code provides:

"The commissioner of public works shall have (subject to the direction of the mayor and the ordinances of council) the supervision, management, and charge of all public works of the city, now or hereafter existing, as regards their construction, maintenance, and operation; and shall let out all public work by contract whenever in his judgment the same is for the best interest of the city."

Section 349 of the City Code is:

"With the consent of the mayor and finance committee, and the chairman of the committee whose department will be affected, he shall fix the number of assistants, clerks, inspectors, overseers, and laborers necessary for the public works."

Paragraph 8 of the plaintiff's petition, which was formally admitted by the defendants to be true, alleged:

"That under and by virtue of an ordinance of the city council of Augusta, approved January 15, 1907, the salary of the commissioner of public works and ex officio engineer of the city of Augusta was fixed at thirty-six hundred ($3,600) dollars per annum, and such sum is in full of all compensation for all services rendered said city council of Augusta by said Nesbit Wingfield, Esq., either as commissioner of public works, ex officio city engineer or ex officio member of the flood commission."

No ordinance of said city and no act of the state Legislature provided any salary for any of the members of the flood commission. It is insisted that the ordinance creating the flood commission did not authorize it to provide for the payment of a salary to one of its members as engineer, and that the only salary provided by the city council of Augusta for the commissioner of public works, ex officio city engineer, and ex officio member of the commission was the sum of $3,600 per annum. It is contended on behalf of the defendants that the salary paid to Mr. Wingfield was authorized by the ordinance of April, 1909, which by its terms enlarged the powers conferred upon the commission under the ordinance of September, 1908; that if this were not so, the city council of Augusta and the flood commission were practically one and the same; and that, inasmuch as the monthly salary was audited by the clerk of council, and approved by the mayor of the city, the chairman of the finance committee, and the chairman of the accounts committee, before payment by the treasurer, the payment of the salary was legally authorized by the city council.

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