Murphy v. West

1. The General Assembly may make classification for the purposes of legislation and may enact general laws with reference to such classes. Where the basis of classification is that of population, in order to be a general law it is necessary that such classification shall be open to let in any county or city which by any future census might have the stipulated population.

2. An amendatory act may amplify or restrict the provisions of an existing law. The amendatory act will not be held to have repealed a provision of the original act by implication except in those cases where the conflict between the original act and the amendatory act is clear and the provisions of the two acts can not be harmonized.

No. 16486. MARCH 14, 1949. REHEARING DENIED MARCH 28, 1949. J. E. Murphy filed his petition for a declaratory judgment, which, as amended, alleged in substance: Under an act of the legislature a pension plan was established for the employees of the City of Atlanta, and a board of trustees created, named persons constituting such board. The City of Atlanta, its comptroller, the board of trustees of the pension fund, and the individual members, are defendants in the case. On March 27, 1931, the plaintiff was employed by the City of Atlanta. He has continued in the employment of the city, and contends that he is now an employee of the city, in that he has never been removed for cause, or had any charges preferred against him, or been suspended as provided by law. His salary was a stated amount. The nature of his employment was keeping up the building, including plumbing, steam heat, refrigeration and electricity. He became seventy years of age in 1947. He was working under the supervision of L. Glenn Dewberry, Superintendent of the City Hall of Atlanta, and on December 29, 1947, he received a letter from Dewberry stating that he could no longer work after December 31, 1947, because he had reached seventy years of age. This letter was issued under and by virtue of a provision in the act approved March 26, 1947, and known as House Bill No. 329. This act of the legislature is a local act applying to the City of Atlanta alone (and paragraph 6 of the act is set out). Under such act, and section 6 thereof, if he is required to retire as of December 31, 1947, he is entitled to a pension when so retiring, whether he has served 25 years or not. During the time of his employment he has made no contribution to the pension fund of the city. On January 1, 1948, he reported for duty, ready, willing, and able to work. Since that date the city has not paid him his salary, neither has it paid him a pension. The city contends that he is no longer employed by it, and not entitled to his salary; and not having made any contribution to the pension fund, that he is not entitled to receive a pension. All employees of the city are under civil service, and not subject to removal except for cause as provided by law. He is entitled to his salary, in that he is and has been ready, willing, and able to work, and has reported for work.

The petition further alleged: The act of the General Assembly of 1947, p. 1635, is unconstitutional, null, and void, in that it violates the Constitution, art. 3, sec. 7, par. 15 (which is quoted), in that no notice of intention to apply for the act was published in the manner required, no certificate by the publisher is attached to the enrolled bill, and no affidavit by the author of the bill to the effect that notice had been published is attached and made a part of the bill as enrolled. The act of the legislature requiring retirement of employees at the age of seventy years is null and void, in that it is class legislation, whereby it includes all employees who have attained the age of seventy years and does not affect those employees who have not attained the age of seventy years, and is not uniform in its operation, in violation of the Constitution, art. 1, sec. 1, par. 2, which provides: "Protection to person and property is the paramount duty of government, and shall be impartial and complete"; and is in further violation of art. 1, sec. 5, par. 2, which provides: "The enumeration of rights herein contained as a part of this Constitution shall not be construed to deny to the people any inherent rights which they may have hitherto enjoyed." Section 6 of the 1947 act denies to him the right to work and earn a living, and it is not impartial, in that it allows persons who have not reached the age of seventy years the right to work for the city, and denies such right to those who have reached the age of seventy years. He contends: (1) that he is entitled to his salary for the months of January and February, 1948, because he has never been legally discharged, and the act forcing him to retire at the age of seventy years is unconstitutional for the reasons stated; (2) if such act of the legislature is valid, then under section 6 of the act he is entitled to a pension equaling 17/25 of the amount of the salary he was drawing as of January 1, 1948; and (3) if he is entitled to the pension, it should be paid by the city or from the pension fund. The City of Atlanta and the board of trustees of the pension fund have denied him the right to either of the reliefs claimed by him, and there is an actual controversy between him and the city. All of the defendants named are interested in the case and the subject-matter thereof.

The prayers were: (a) that the 1947 act be declared unconstitutional, null, and void, and the plaintiff declared entitled to his salary; (b) in the event the act is constitutional, then it be declared that, by reason of section 6 of the act, the plaintiff is entitled to his pension in the amount of 17/25 of his salary as of January 1, 1948; (c) if he is entitled to a pension, then it be declared whether it shall be paid by the board of trustees of the pension fund from such fund, or be paid directly by the city; (d) upon the declaration of his rights, that he have judgment ordering the sums to be paid to him; and (e) for other and further relief.

The general demurrers of the defendants, as renewed after the amendment, were sustained, and the exception here is to the sustaining of the demurrers. 1. The plaintiff in error contends that the act approved March 28, 1947 (Ga. L. 1947, p. 1635), amending an act approved August 20, 1927 (Ga. L. 1927, p. 265), is unconstitutional; and that the requirement of the amendatory act, that he be retired at the age of seventy years, is therefore null and void, and he is entitled to compensation from the City of Atlanta. If it should be determined that the amendatory act is constitutional, then the plaintiff in error contends that he is entitled to a pension under section 6 of the amendatory act.

The plaintiff in error contends that the amendatory act of 1947 is a local or special law, and that it was enacted in violation of the Constitution, art. 3, sec. 7, par. 15 (Code, Ann., § 2-1915), providing for the advertisement of all local or special acts. Neither the original act of 1927, nor the amendatory act of 1947, is prima facie a local or special act. The original act of 1927 by its caption provides in part: "An Act to provide that cities having a population of more than 150,000 by the United States Census of 1920, or subsequent census, shall, etc." The caption of the amendatory act of 1947 follows the caption of the original act. As shown by the captions of the original and the amendatory acts, the legislature made a classification for the purpose of legislation, and enacted what purports to be a general law applicable to all cities falling within the classification made.

In Stewart v. Anderson, 140 Ga. 31 (78 S.E. 457), it was held that the General Assembly may make a classification for the purpose of legislation, and that, if a classification is made, to be legal it must apply to all coming within the class, or which may come within the class. An examination of the act under consideration in the Stewart case (Ga. L. 1911, pp. 186-197) clearly reveals that the act contained so many restrictions and limitations that it could not apply, as was pointed out by this court, to any county except the County of Fulton. Thus, while the act of 1911, under consideration in theStewart case, was held to be a special act, and unconstitutional as being in conflict with the general law, the decision in that case, being by a full bench, is binding authority for the proposition that population may properly furnish a basis for classification, provided it is open to let in all who may come within the classification made.Abbot v. Commissioners of Fulton County, 160 Ga. 657 (129 S.E. 38); Sumter County v. Allen, 193 Ga. 171, 176 (17 S.E.2d 567). In the amendatory act of 1947, and the original act of 1927, there is no basis of classification used other than population, and no city in the State can therefore be excluded in the future from falling within the classification made.

It is contended by the plaintiff in error that the classification in this case on the basis of population is such as to make it apply to only one city, and that an examination of the last Federal census will reveal that this is true; and in addition it is contended that it will probably be many years before any other city in the State would come within the classification made. It has been approximately nine years since the last Federal census, and this court is not advised, officially or otherwise, as to the growth or increase in population in any of the cities of this State. Legislative acts, however, will not be upset upon speculation as to what may or may not exist. In order to justify declaring an act of the General Assembly unconstitutional and void, the conflict between the act and the Constitution must be clear and plain. Flint RiverSteamboat Co. v. Foster, 5 Ga. 194; Turman v. Cargill Daniel, 54 Ga. 663; Wellborn v. Estes, 70 Ga. 390;Wright v. Hirsch, 155 Ga. 229 (116 S.E. 795); Wright v.Fulton County; 169 Ga. 354 (150 S.E. 262); Mayes v.Daniel, 186 Ga. 345 (198 S.E. 535). No such conflict appears in this case. The act under attack (Ga. L. 1947, p. 1635) is not a local or special law. It does not, therefore, violate the provisions of the Constitution pertaining to the advertisement of a local act.

The contention of the plaintiff in error, that the requirement of the amendatory act, that employees shall retire upon reaching seventy years of age, violates art. 1, sec. 1, par. 2, and art. 1, sec. 5, par. 2, of the Constitution, is clearly without merit. In Cooper v. Rollins, 152 Ga. 592 (110 S.E. 726), it was held: "Our State Constitution only requires a law to have uniform operation; and that means that it shall apply to all persons, matters, or things which it is intended to affect. If it operates alike on all who come within the scope of its provisions, constitutional uniformity is secured. Uniformity does not mean universality. This constitutional provision is complied with when the law operates uniformly upon all persons who are brought within the relations and circumstances provided by it."

2. By section 6 of the amendatory act of 1947 it is provided that all officers and employees shall be compelled to retire at the end of the calendar year following their seventieth birthday, and it is further provided in section 6: "All such officers and employees shall be entitled to a pension when so retiring, whether they have served 25 years or not. For example, if such officer or employee has served 10 years, he shall be entitled to 10/25ths of the pension that he would be entitled to had heserved 25 years." (Italics ours.) It is contended that by this provision a pension is granted to all employees upon reaching the age of seventy years, although it is conceded that the plaintiff in error did not contribute to the pension fund.

The amendatory act does not purport to repeal the provisions of the original act, section 7, which provides: "In case any employee or officers objects to the deduction of said salary or wages of said two per cent, or otherwise objects to the payment of said two per centum, such officer or employee shall not be entitled to the pension provided by this act."

Had the plaintiff in error served 25 years under the terms of the original act, he would not be entitled to a pension, since he declined to make himself eligible by paying the required amount to the pension fund. Section 6 of the amendatory act supplements the original act so as to extend the provisions of the act to persons who have reached seventy years of age, but who have not served 25 years. The purpose of the amendment is to allow such persons who had qualified and made the payments required by the original act to draw a pension based on the period of their employment. Section 7 of the original act is not repealed by the amendatory act of 1947, either directly or by implication. The provisions of section 7 of the original act and section 6 of the amendatory act are entirely in harmony. In order for any employee to receive a pension, he must have contributed to the pension fund. The plaintiff in error elected not to contribute to this fund. By his election he has barred himself from coming within the provisions of the act as a pensioner.

Since the petition does not set out a cause of action for any relief prayed, it was not error for the trial court to sustain the demurrers thereto.

Judgment affirmed. All the Justices concur.