McCutcheon v. Smith , 199 Ga. 685 ( 1945 )

1. For an employee of Fulton County, Georgia, to obtain the status of an incumbent under the civil service act of 1943 (Ga. L. 1943, p. 971), it was necessary that the relationship to the county be that of an employee on the effective date of the act, to wit, June 1, 1943. A former employee discharged before the effective date obtained no status under the civil service act.

2. An act approved February 8, 1945, purporting to amend the above civil service act by declaring that a named person, who admittedly was discharged as a county employee on March 19, 1943, and who was not again employed on or before June 1, 1943, was an employee as of June 1, 1943, under the terms of the civil service act and entitled to a civil service status thereunder, is clearly an attempt by the legislature to perform a judicial function by construing a law, and offends article 1, section 1, paragraph 23 of the constitution of this State (Code, § 2-123), and is void.

No. 15231. SEPTEMBER 5, 1945. Suit by Mrs. Gertrude Smith against A. B. Foster, sheriff, members of Fulton County civil service board in their official capacity, the secretary of that board in her official capacity, and Mrs. Evelyn W. McCutcheon, alleging that the petitioner was and had been for more than two months a deputy sheriff, matron 1, of Fulton County, Georgia, on June 1, 1943, the effective date of the civil service act of 1943 (Ga. L. 1943, p. 971), and qualified under said act to hold the position of matron 1. The petition set forth a series of minutes and documents executed by the defendants, showing that as of March 1, 1945, the official defendants removed the petitioner from her position as matron 1, the salary for which was $185 per month, and demoted her to matron with a salary of $175 per month. No charges of any kind what ever were brought against the petitioner by any of the defendants, and her removal by them was contrary to the terms of the civil service act, and her removal and demotion, having been made without notice or a hearing, are in direct violation of §§ 15 and 18 of the civil service act. The petitioner protested the action of the defendants and has demanded of each of them that she be allowed to perform the duties of the office of matron 1 and receive the compensation therefor. The defendant McCutcheon was not an employee of Fulton County on June 1, 1943, having been discharged from the position as matron 1 by the sheriff in March 1943, prior to the effective date of the civil service act, to wit, June 1, 1943. She has not otherwise qualified under the civil service act to hold the position, never having taken and passed an examination as required by the act. By an amendment, and act approved February 8, 1945, purporting to amend the 1943 civil service act, was attacked upon numerous constitutional grounds. The prayer was for mandamus absolute requiring the defendant to permit the petitioner to occupy the position of matron 1, perform the duties of deputy sheriff, matron 1, of Fulton County, and receive the salary therefor.

The defendants. McCutcheon and Foster as sheriff, filed demurrers to the petition as amended, on the ground that no cause of action was alleged against the demurrants, and upon the further ground that the allegations failed to show that the petitioner is entitled to the relief prayed for against the defendants.

All the defendants answered, admitting the allegations of fact showing ouster of the petitioner from the office in question and the installation of the defendant McCutcheon therein as alleged, and admitting that the defendant McCutcheon was discharged from the position of matron 1 by the then action sheriff, on March 19 1943, but alleging that, under the original act and the act as amended in 1945, the defendant McCutcheon was and is entitled to receive all the benefits of the said act and to hold and perform the duties of the office of matron 1.

The petitioner demurred to each of the answers of the defendants upon the grounds that: (1) no defense whatever against the plaintiff's cause of action is set forth; (2) the said allegations, in so far as they attempt to set forth the purported act of the General Assembly approved February 8, 1945, as a defense, are without merit and constitute no defense to the plaintiff's action, for the reason that the act approved February 8, 1945, contravenes and violates the constitution of Georgia, and the demurrer then fully sets forth various provisions of the constitution which it is alleged are violated by the said act, among which is article 1, section 1, paragraph 23 (Code, § 2-123), that "The legislative, judicial, and executive powers shall forever remain separate and distinct, and no person discharging the duties of one, shall, at the same time, exercise the functions of either of the others, except as herein provided."

The case was tried by the judge without a jury upon an agreed statement of facts, in substance as follows: The defendant McCutcheon was appointed to deputy sheriff of Fulton County in 1932, and was appointed to serve as chief matron at the county jail. She was discharged from the said position by the sheriff on March 19, 1943. Following her discharge, the petitioner was assigned the duty as chief matron, she being at the time a duly appointed and qualified deputy sheriff of the said county. The defendant McCutcheon served continuously from 1932 to 1943 as chief matron and was discharged on March 19, 1943. The position as deputy sheriff, chief matron, of the Fulton County jail became known under the civil service act as deputy sheriff, matron 1. There were only four positions of matron at the time of the civil service act becoming effective on June 1, 1943. When the classification plan was adopted by the civil service board these four positions became known as deputy sheriff, matron 1, and three positions as deputy sheriff, matron 2. Mrs. W. T. Turner at the time the civil service act became effective on June 1, 1943, occupied one of the positions as matron, and she was duly appointed and qualified deputy sheriff and her position became known as deputy sheriff, matron 2. under the classification Plan. Both Mrs. Gertrude Smith and Mrs. W. T. Turner occupied without interruption the positions they held on June 1, 1943, at the time the civil service act became effective, until the action taken by the sheriff of Fulton County and the civil service board, described and set out in the petition in this case and the answer of the civil service board and the sheriff. The letters set out in the original petition and the excerpts from the minutes of the civil service board and the commissioners of roads and revenues are correct copies of the documents they purport to represent, and the acts described in said letters did occur. No charges or complaints of any kind were filed by any person against either Mrs. Gertrude Smith or Mrs. W. T. Turner with A. B. Foster, sheriff, or the civil service board; and no charges were filed against Mrs. Evelyn McCutcheon with the sheriff prior to her discharge on March 19, 1943, except such as are set out in the letters of the sheriff discharging her. Mrs. McCutcheon filed her claim of status under the civil service act as a condition to her being entitled to the benefits thereof, as alleged in the answer of the civil service board. This application was not recognized by the board, and she was not given the status applied for, the reason being that the civil service commission considered that she was not an employee of the county, they construing the act to mean that she was not entitled thereunder to civil service status because she was not an employee of the county on the effective date of the act. The civil service rules adopted by the Fulton County civil service board were approved by the commissioners of roads and revenues of Fulton County on September 27, 1943. The classification plan prepared by the Fulton County civil service board was approved and adopted by the commissioners of roads and revenues of the said county. The salary of the position of Mrs. Gertrude Smith as deputy sheriff, matron 1, was $185 per month, and the salary of matron 2 would be $175 per month. At the time the defendant McCutcheon was discharged on March 19, 1943, and prior thereto the petitioner was an assistant matron, and Mrs. McCutcheon was chief matron, and the employment of the petitioner was subsequent to the employment of Mrs. McCutcheon as chief matron. The petitioner filed the necessary application with the civil service board in less than ninety days after the effective date of the act to qualify for the terms of the civil service act.

The demurrers of the defendant, Mrs. McCutcheon were overruled; and ground one of the petitioner's demurrer was overruled and ground two sustained, in which latter ground it was alleged that the act approved February 8, 1945, was violative of article 1, section 1, paragraph 23, of the constitution of this State (Code, § 2-123), as herein before set out. Final judgment was entered, granting the petitioner the relief prayed for. To this judgment Mrs. McCutcheon excepted, assigning error also on the judgment overruling her demurrer to the petition and the judgment sustaining ground two of the petitioner's demurrer to her answer, and naming the petitioner and the other defendants as defendants in error. 1. That Mrs. Evelyn W. McCutcheon was not an employee of Fulton County, Georgia, on June 1, 1943, the effective date of the civil service act of 1943, was specifically ruled by this court inMcCutcheon v. MacNeill, 197 Ga. 72 (28 S.E.2d 469). While that case was a claim by Mrs. McCutcheon for her salary, the decision necessitated a construction of the civil service act to determine whether or not she had a status as an employee as "deputy sheriff, matron 1," under the terms of the act. Further discussion on that question here would be useless. It is contended by counsel for the plaintiff in error, however, that the status as defined in section 6 of the act was not considered by this court, and that the plaintiff in error had a status as an employee under that portion of the said section which declares that "any person who as of January 1, 1943, had been an employee of Fulton County for at least six months immediately preceding the effective date of this act, shall continue to hold such position subject to the provisions of this act and shall be deemed to be qualified for such employment and shall be entitled to receive a regular permanent appointment in accordance with the provisions of this act." While the quoted language is not clear in all respects, it is very definite in requiring that the period of employment there referred to be that period "six months immediately preceding the effective date of this act." The reference to January 1, 1943, apparently is surplusage and means nothing. Obviously it was not the legislative intent to go back and pick up former employees of the county who, for reasons satisfactory to those empowered to discharge them, had been discharged and separated from the county's service prior to the effective date of the civil service act, and by the terms of that act give such discharged employees a civil service status with a right to permanent employment notwithstanding their previous discharges were for good and sufficient cause. The petition as amended shows that the petitioner fully met all the requirements of the civil service act to entitle her to the position of deputy sheriff, matron 1, which she seeks by this action. The petition was, therefore, not subject to the defendants' demurrers, and the court did not err in overruling the same. The agreed facts upon which the case was tried support the allegations of the petition and show that the petitioner is the rightful occupant of the position of deputy sheriff, matron 1, of Fulton County and entitled to perform the duties thereof and receive the compensation therefor. The judgment making the mandamus absolute was demanded by the evidence.

2. The defendants rely upon an act approved February 8, 1945, which is set out as an exhibit to the petition and to some of the answers. That act purports to amend the civil service act (Ga. L. 1943, p. 971) by adding to section 6 the following: "It is hereby declared that as of June 1, 1943, Mrs. Evelyn W. McCutcheon was an employee of Fulton County for at least 6 months immediately preceding the effective date of this act and that she occupied the position of matron of the Fulton County jail and was entitled to receive a regular, permanent appointment in accordance with the provisions of this act and she is permitted to receive the benefits of this act by within 90 days from the effective date of this amendment following the procedure set out in section 6 of said act." The validity of this act is challenged by the petitioner's answer and demurrer. The demurrer alleges that the act offends article 1, section 1, paragraph 23 of the constitution of this State (Code, § 2-123), which declares that "The legislative, judicial, and executive powers shall forever remain separate and distinct, and no person discharging the duties of one, shall, at the same time, exercise the functions of either of the others, except as herein provided." While the line of demarcation separating the legislative, judicial, and executive powers may sometimes be difficult to establish, and for this reason each of the three co-ordinate branches of government frequently invades the province of the others, it is nevertheless essential to the very foundation of our system of government that the mandate of the constitution be strictly enforced. The judicial branch doubtless invades the legislative filed more frequently than does the legislative branch the judicial field, but it is the duty of each to zealously protect its function from invasion of the others. The legislature has ample power to prevent attempted judicial legislation. Likewise the judiciary has the power to prevent judicial functions by the legislature, and the welfare of the State demands that it exercise this power when necessary. In enacting the civil service law the legislature was performing a legislative function. In construing the meaning of that act this court in McCutcheon v. MacNeill, supra, was performing a judicial function. By that decision the meaning of the 1943 act was judicially determined and fixed. The 1945 act here assailed is literally a legislative construction of the 1943 act which is directly in conflict with its meaning as judicially determined. In 1851, in McLeod v. Burroughs, 9 Ga. 213, this court had for decision a similar question. There under an act of 1806 the complaint erected a bridge, and thereafter, in 1841, the legislature passed an act defining the meaning of the previous act in a way prejudicial to the complainant's rights. This court held the latter act void, and at page 216, quoting from Wilder v. Lumpkin, 4 Ga. 208, 212, said: "A legislative exposition of a doubtful law is the exercise of a judicial power, and if it interferes with no vested rights, impairs the obligation of no contract, and is not in conflict with the primary principles of our social compact, it is in itself harmless, and may be admitted to retroactive efficiency; but if rights have grown up under even a law of somewhat ambiguous meaning, then the universal rule of our system — indeed of the English system of government, and of other systems which approximate to free government — applies. That rule is, the courts declare what the law is, the legislative declares what the law shall be." It was stated further there that the original act in question was a contract between the individual and the legislature, that both parties were bound by this stipulation, and that what its meaning was for the courts to determine, and it was held that "he is not subject to the peril of legislative constructions; if he were, then charters and grants would be but a mockery. Who would accept a charter if it was subject at all times to legislative construction; that is to say, subject to be impaired by law? No sane man, or half-witted set of men. The power to sit in judgment upon his own contracts by one of the parties, is nowhere conceded under any system of free government; that would be an enormity at which justice revolts." In Calhoun v.McLendon, 42 Ga. 405, there was involved an act of the legislature declaring a single person to be the head of a family under the constitutional provision allowing a homestead to the head of a family. This court said of the act that it "is not a judicial construction of the constitution; that the judiciary under our government is alone empowered to interpret the constitution and laws, and, with great deference to the legislative department of the State government, we hold that it is not competent to enact that a single person living to himself or herself is the head of a family within the meaning of article 8, section 1, of the constitution, but the decision of this court on that subject is paramount." It was further said, in the opinion at page 407, that "In the dividing line of power between these co-ordinate branches we find here the boundary — construction belongs to the courts, legislation to the legislature. We can not add a line to the law, nor can the legislature enlarge or diminish a law by construction."

The act approved February 8, 1945, being a legislative attempt to construe another act of the legislature, offends the clause of the constitution here involved and is void. The court did not err in sustaining ground 2 of the petitioner's demurrer raising this question.

Judgment affirmed. All the Justices concur.