McCutcheon v. MacNeill , 197 Ga. 72 ( 1943 )

One who had been a deputy sheriff of Fulton County, but who on March 11, 1943, had been given a "leave" by the sheriff, and was by the sheriff on March 19, 1943, notified that the "leave" was made permanent, and who was then notified by the sheriff in a letter that "you are no longer a deputy sheriff under me and have not been since March 11, 1943," was not placed in the classified service referred to in the act approved March 15, 1943 (Ga. L. 1943, p. 971 et seq.), so as to prevent the sheriff from discharging her prior to the effective date of the act, which was June 1, 1943.

No. 14729. NOVEMBER 30, 1943. REHEARING DENIED DECEMBER 13, 1943. The plaintiff in error brought suit against the treasurer of Fulton County seeking mandamus to compel the payment to her of certain sums alleged to be due her as salary as deputy sheriff. It was averred that she had served as deputy sheriff continuously since February 1, 1932, but that she had not been paid her salary since April 1, 1943. Attached to her petition and made a part thereof was a letter from the sheriff under date of March 19, 1943, as follows: "Mrs. Howard C. McCutcheon, 915 Crew Street, S.W., Atlanta, Georgia. Dear Mrs. McCutcheon: This is to advise you that I have decided to make your leave, which was given you on March 11, 1943, permanent. The bonding company has been instructed to cancel your bond as a deputy sheriff as of that date. Inasmuch as you only worked ten days this month I am sending a voucher to the county commissioners for one third of your usual salary and at the same time advising them to strike your name from my pay roll; as you are no longer a deputy sheriff under me and have not been since March 11, 1943. I regret very much to have to take this action, however, conditions that you allowed in the Fulton County jail on Sunday, March 7, 1943, force me to do this in justice to the citizens of Fulton County and myself. Yours very truly, J. M. Mount, Sheriff."

To the petition as amended, a demurrer was sustained, and the suit dismissed. Mrs. McCutcheon excepted. Ordinarily under the general law, deputy sheriffs are the employees of the sheriff, and subject to be discharged by the latter. Drost v. Robinson, 194 Ga. 703 (22 S.E.2d 475). It is the insistence of the plaintiff in error, however, that under the provisions of the act approved March 15, 1943, entitled "An act to create a Civil Service Board in Fulton County," (Ga. L. 1943, p. 971 et seq.), she was under the classified service, and therefore the sheriff had no right to remove her. This contention is based on the language of the first portion of section 5, subhead 2 of that act, as follows: "The classified service shall include all other public officers and employees in the employ of Fulton County now or hereafter employed, including deputies and employees in the office of the clerk of the superior court, sheriff, tax collector, tax receiver, ordinary, treasurer, civil court of Fulton County, criminal court of Fulton County, tax assessors, juvenile court, adult probation office, employees of the sanitary department, and others not placed in the unclassified service." The argument based on this premise, however, fails to take into account the latter portion of the same subhead, to wit: "After the effective date of this act, all appointments, employments, removals, promotions, demotions, transfers, lay-offs, re-instatements, suspensions, leaves of absence without pay, and changes in grade or title in the classified service shall be made and permitted only as prescribed in this act, and not otherwise." Here is a direct statement that after the effective date of the act, all removals shall be made only as prescribed by the act, and not otherwise. This can mean nothing else than that before the effective date of the act removals may be made under the previously existing laws. Section 27 of the act is in the following words: "Effective date. This act shall take effect June 1, 1943." The plaintiff in error was discharged by the sheriff before the effective date of the act. The salary she seeks was only that which would have accrued had she not been removed.

The reasoning of the plaintiff in error's counsel, derived from the use of the word "now" in that portion of the act above quoted, has not been overlooked, nor the argument that the act was law on March 15, although its effective date was set at June 1, 1943. An examination of the opinion in Ross v. Jones,151 Ga. 425 (107 S.E. 160), will disclose that a similar view was presented to this court in that case, but was rejected. There the act providing for an additional judge for the Macon judicial circuit was approved August 17, 1920, and declared, "That upon the passage and approval of this act there shall be appointed," etc. It also contained a section which fixed the effective date of the act as November 1, 1920. Without going into detail, it is sufficient for present purposes to say that the decision turned upon what date the office was created, one insistence being that the office was created on the date of the approval of the act, the other that it was not created until the act by its terms went into effect. The latter contention prevailed, notwithstanding the language in the act next-above quoted. It must be held that the use of the word "now" did not have the effect of putting into immediate execution any portion of the act, but that its use in the phrase "now or hereafter employed" was intended to designate those who came within the classified service on the effective date of the act. It is not necessary to rule upon certain other questions discussed in the briefs.

Judgment affirmed. All the Justices concur.