Thompson v. City Council of Augusta , 193 Ga. 36 ( 1941 )

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 mandamus to compel his reinstatement.

No. 13866. OCTOBER 16, 1941. 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 it 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. L. Ex. Sess. 1937-38, 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 he was suspended solely because of lack of funds with which to pay him; that by ordinance 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 $1300. He prayed that he have judgment for $1300 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 water-works committee of 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 2 and 3, 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 he made a demand for a copy of charges to be preferred against him, as provided in said act. The allegation that the plaintiff has been illegally withheld from his position, and therefore is entitled to mandamus, is demurred to, "because, in construing the entire count of said petition, the defendant complied with the statutes of the charter of the City of Augusta and particularly the permanent-tenure act by suspending the plaintiff, said act not requiring defendant to make specific charges against plaintiff until after said suspension and demand made by plaintiff for charges, which said count fails to show that plaintiff did."

The plaintiff amended counts 2 and 3 by adding the following:

"14(a). That a vacancy in the position of cut-off man was created on or about December 20, 1939, by the resignation of A. L. Mowery, who had held said position for several years prior to said date.

"14(b). That while he was listed first as a commercial meter reader and thereafter as a meter reader, plaintiff did, during the eighteen months that he was in the employ of the city, before he was laid off as aforesaid, discharge the duties of a cut-off man and was entitled to fill said vacancy when it occurred by the resignation aforesaid.

"14(c). That the promotion of Mack Seals from the position of bill deliverer to the aforesaid position of cut-off man left vacant the position of a bill deliverer, which position the said Seals had formerly held, being classified as a bill clerk.

"14(d). That during the time plaintiff was in the employ of the said waterworks department, although he was classified as a meter reader and as a commercial meter reader, he discharged the duties of a bill clerk for several months and delivered bills and was thoroughly familiar with the duties of said position and competent to handle said duties.

"14(e). That while in the operation of said waterworks department employees are classified as cut-off men, meter readers, commercial meter readers, and dead-meter men, they are assigned interchangeably at all times to the duties of any one of the aforesaid positions, and the classifications as to positions is used largely for the purpose of fixing salary of the employees, rather than fixing their duties.

"14(f). That petitioner and other employees of the waterworks department were subject to be assigned from day to day to duties of any of the aforementioned positions.

"14(g). That plaintiff has at all times stood ready and able to report to duty upon being recalled by the defendant."

The defendant renewed its demurrers to the petition as amended. The court sustained the demurrers and dismissed the action, and the plaintiff excepted. Each of the three counts of the petition alleges that 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 carry on the other operations of the city, and that in pursuance thereof the petitioner and another were laid off or temporarily suspended from the positions of meter readers. The act approved December 31, 1937 (Ga. L. Ex. Sess. 1937-38, pp. 938 et seq.), amending the charter of the City of Augusta so as to provide for the permanent tenure of certain officers and employees of that city until they are removed or discharged for certain stated reasons, after which any such employee so discharged may demand and receive an investigation and public trial of the charges upon which such discharge was had, contains also this provision: "Section 10. Nothing herein contained shall restrict the rights of the City Council of Augusta to bona fide abolish any position held by any permanent employee or other employee; provided, however, that if abolition of position is restored [resorted] to as subterfuge to discharge such employee, he shall have his action therefor as of breach of contract."

The plaintiff principally relies on the authorities next mentioned. In Board of Education v. Horan, 11 N. J., Misc. 751 (168 A. 132), it was held that certain teachers who under a statute were entitled to an indefinite period of employment, but who were dismissed for reasons of economy, were entitled to be reinstated when it appeared that their places had subsequently been filled by teachers who were not protected by the tenure of office act. In Crawford v. Board of Education, 20 Cal.App. 391 (67 P.2d 348), it was held that a statute providing for permanent employment of probationary teachers by school districts did not authorize governing boards thereof to discharge permanent teachers by reducing time of their employment to such brief periods as would be equivalent to dismissal, while permitting employment of teachers without permanent status. In Barnes v. Mendenhall (Ind.App.) 183 N.E. 556, it was declared that an indefinite contract of a permanent teacher could not be canceled on the ground of justifiable decrease in number of teaching positions, where non-tenure teachers were retained. In the New Jersey case, supra, the teachers discharged were those protected by the act, while those retained were not. The court in effect said that where there had to be a reduction in the teaching force, it was illegal to release whose tenure of office was protected by the act, while retaining those not within its fostering folds. The California decision, supra, merely condemned the action of a school board in practically dismissing teachers entitled to permanent employment, although retaining a number of probationary teachers. In the Indiana case, supra, the court dealt with a similar state of facts, and the decision went no further than to hold that the contract of teachers of the one class could not be canceled, when those of the other, i. e., non-tenure, were retained.

The plaintiff is not complaining that while his relations with the city were severed, others who did not occupy the same status, but who had a less permanent one as to tenure of service, were kept. Properly construed, the gist of the complaint in the first count is, that, having under the charter amendment and ordinances reached the status of a permanent employee, he was laid off solely because of lack of funds with which to pay him. The decisions in general sustain the right to lay off an employee when such action is taken conscientiously for the purpose of effecting economies in the administration of public funds, or when rendered necessary by the scarcity of such funds, even though the employee held his appointment under civil-service rules and regulations. Some of the authorities recognize this right to suspend for a temporary period, and others attach no such limitation to it. Shira v. State, 187 Ind. 441 (119 N.E. 833); Fricke v. Grand Rapids, 278 Mich, 323 (270 N.W. 697); Osborne v. Columbus, 15 Ohio N. P. 561 (affirmed,75 Ohio St. 588, 80 N.E. 1130); and annotation in 111 A.L.R. 432. We attach no significance to the fact that the pleader uses the expression "or temporarily suspended" after the words "laid off," in describing the severance of the plaintiff's relations with the city. Reading the entire petition, it is apparent that he "lost his job," to use a well-understood phrase. His position was thereby effectively abolished. See Gilbert v. Civil Service Commission, 61 Cal.App. 459 (215 P. 97, 98), and cit. Section 10 of the act quoted above expressly gives the city the right to do this. There is nothing in the petition to show that this action of the city authorities was taken, not in good faith, but for the actual purpose of creating a vacancy in order to permit the appointment of another person thereto. When laid off, the plaintiff ceased to be an employee, and the permanent-tenure act did not give him any right to be recalled, which would in fact be re-employment, when a vacancy occurred in the department in which he was formerly employed. The allegations in the second count that within a week after he and Austin were laid off, Austin was reinstated, does not aid the plaintiff's case, nor does the fact that when Mack Seals was promoted from the position of bill deliverer to another position, the plaintiff demanded that he (plaintiff) be reinstated to the position thus made vacant, and that instead of that demand being complied with the authorities employed Baker, a new employee, to fill that position; nor do the allegations of the amendment relating to the classification of employees and their being assigned interchangeably to the duties of any one of the different positions. These things singly or collectively do no show a violation of the terms of the charter amendment. What the city did with reference to the other employees mentioned affords no reason why the plaintiff is entitled to any of the relief sought. None of the counts sets forth a cause of action. The judgment of dismissal is Affirmed. All the Justices concur.