MacNeill v. Wertz

1. Where, in a petition for mandamus to compel the payment of salary of a probation officer under the Code, § 27-2703, the petition enumerates specified grand jury recommendations for the appointment of such officers, and sets forth in chronological order the appointments made by the judge in pursuance thereto, and where the appointment of the petitioner is shown to have been made at a time when the number of such officers authorized by the grand jury had not been filled by appointments of the judge, such petition is not subject to general demurrer on the ground that no authority for the appointment is alleged.

(a) The grand jury recommendations, referred to in the forgoing headnote, did not become functus officio by reason of not being acted upon promptly by the judge.

2. The trial court did not err in dismissing the answer and granting a mandamus absolute.

No. 15339. JANUARY 15, 1946. REHEARING DENIED FEBRUARY 21, 1946. This is the second appearance of this case. See MacNeill v.Wertz, 198 Ga. 47 (30 S.E.2d 820). Mrs. Lena Wertz filed a petition against Mrs. Mabel A. MacNeill, Treasurer of Fulton County, seeking a mandamus to compel her to pay the plaintiff $2155 with interest from August 25, 1943, as additional salary due her as probation officer, appointed under authority of the act approved August 16, 1913 (Ga. L. 1913, p. 112; Code, § 27-2703).

The original petition alleged that she was appointed adult probation officer for Fulton County by order dated December 30, 1930, and her salary fixed at $150 per month. She alleged that from 1931 through 1940 she received as salary various sums less than the amount fixed by the order of her appointment, so that the total salary received was $2155 less than the amount due her when computed at the rate of $150 per month. This petition was amended three times. To this petition Mrs. MacNeill, as treasurer, filed a general demurrer and an answer. The case was submitted to the trial judge to pass upon all questions of law and fact. The general demurrer was overruled, and after hearing evidence, a mandamus absolute was granted. This judgment was reviewed when the case was previously before this court, and a reversal was granted on the ground that it was error to overrule the general demurrer. It was there pointed out that the petition was subject to general demurrer for the reason that the appointment by the judge was without authority, as the law required the grand jury first to recommend whether there should be a probation officer and an assistant or assistants, and the petition failed to show that there had ever been such recommendation as to the position claimed by the petitioner.

When the remittitur from this court was sent to the trial court, and before any judgment was entered thereon, the petitioner amended her petition seeking to supply the defects pointed out in the decision of this court. By this amendment, allowed September, 6, 1945, she struck and eliminated paragraph three of the original petition, the three previous amendments, and inserted in lieu thereof a new paragraph, which is subdivided into many paragraphs and sets forth various recommendations of the grand jury and orders of the superior court judge relating to grand-jury recommendations as to, and court appointments of, probation officers and assistants. The demurrer of the treasurer to the petition as amended was overruled. Mrs. Wertz made an oral motion to strike the answer of the treasurer on the ground it set forth no substantial defense, which motion was sustained. The court granted a mandamus absolute. By writ of error the treasurer excepts, and assigns error to the foregoing rulings, to wit, (a) to the overruling of her general demurrer, (b) striking her answer and granting a mandamus absolute. She contends that her answer contained issues of fact which should have been submitted to a jury, and that such facts were sufficient to authorize a verdict and judgment in her favor. 1. The first question for determination is whether or not, by the amendment filed after the previous decision of this court, the petition then alleges that the appointment of Mrs. Wertz by the judge of the superior court was by recommendation of the grand jury in accordance with the act approved August 16, 1913 (Ga. L. 1913, p. 112; Code, § 27-2703). In order to determine whether the position held by Mrs. Wertz was provided by recommendation of the grand jury, it becomes necessary to enumerate their various recommendations as contained in the amendment, and also to compare the appointments to fill these positions made by the judges previous to her appointment. At the September term, 1913, the grand jury made a recommendation for the appointment of a "probation officer;" in November, 1914, they recommended an "experienced woman;" on December 18, 1914 they recommended a "competent woman;" at the November term, 1915, they recommended the appointment of "such assistants as he may deem necessary;" at the September term, 1920, they made a recommendation. "We believe that it would not be unwise to employ additional help for field work in connection with the probation office;" and at the September term, 1921, their presentments, after making reference to probation officers, stated, "An assistant in this office is badly needed, and we suggest that, if a field assistant cannot be provided, . . a young man to handle detail office work be employed." The recommendation in 1915, being in the plural, authorized the appointment of at least two; and though the recommendations of 1920 and 1921 are informal, they are sufficiently definite to authorize the judge to make appointments thereunder. Whereby an act of the legislature an office is created to become effective and operative upon the recommendation of the grand jury, no particular form or language is required in the presentments so long as the intent of the grand jury's recommendation is clear and understandable. Haney v.Commissioners, 91 Ga. 770, 773 (18 S.E. 28); Cason v.McLeod, 168 Ga. 702 (148 S.E. 584). From the foregoing recommendations of the grand jury, there are provisions made for seven positions to be filled by appointment of the judge. Eliminating from consideration those who were appointed, but who subsequently resigned or for other reasons had successors appointed, the following appointments appear: George Allen Maddox, May 24, 1919; Don W. Green, May 24, 1919; Miss Idella Bellah, September 30, 1922; J. M. McElroy, September 1, 1925; Mrs. Lena Wertz, February 21, 1927; and Walter T. Daniel and Charles P. Martin "after February 21, 1927." On December 31, 1930, the petitioner was again appointed as an adult probation officer and her salary fixed at $150 per month.

From the foregoing it appears that the petition as amended sufficiently set forth that the judge of the superior court had authority based upon grand-jury recommendations to appoint the petitioner as an assistant probation officer.

(a) The treasurer insists that, under the facts alleged, the various recommendations of the grand jury became functus officio when not acted upon promptly by the judge. We do not concur in this view. In Freeney v. Pape, 185 Ga. 1 (2) (194 S.E. 515), in reference to this same act it was said: "The act does not delegate any legislative power, but itself creates the office, to become operative in any particular county on . . recommendation by its grand jury." Accordingly, upon the recommendation of the grand jury, the office became operative and legally existed, even though no one was appointed thereto. The appointment of the official became mandatory upon the judge. The mere fact that an office is not being filled by any one does not nullify the legal existence of the office. Massenburg v.Commissioners of Bibb County, 96 Ga. 614 (23 S.E. 998);Morris v. Glover, 121 Ga. 751 (49 S.E. 786); Culberson v. Watkins, 156 Ga. 185 (119 S.E. 319); Jenkins v.State, 93 Ga. 1 (18 S.E. 992).

2. It is further insisted by the treasurer that the court erred in striking the answer. It is contended that there were certain denials of allegations in the petition, raising issues of fact which should have been submitted to a jury. In the answer there is no specific denial that Mrs. Wertz was appointed a probation officer by the judge of the superior court and her salary fixed at $150 per month; or that she received compensation at less than $150 per month without an order of the judge changing the amount of her salary as originally fixed. Construing the answer in its entirety, in substance it denies that Mrs. Wertz performed the duties of a probation officer, and also controverts the legality of her appointment. A valid appointment having been alleged, the nature of the duties performed by Mrs. Wertz would not be germane to the mandamus proceeding. Butler v. Pape, 183 Ga. 599 (5) (188 S.E. 890). Where properly appointed to the office with a salary fixed, she would be entitled to the salary whether she performed the duties of the office or not. Tucker v. Shoemaker, 149 Ga. 250 (99 S.E. 865). So much of the answer as denies the legality of the appointment of Mrs. Wertz presents only legal conclusions from undisputed facts, and constitutes no meritorious defense which could properly be submitted to a jury. Freeney v. Pape,185 Ga. 1 (5) (supra).

The trial court did not err in granting a mandamus absolute. Judgment affirmed. All the Justices concur, except Duckworth,Wyatt and Head, JJ., who dissent.