Almand v. Wallace

The defendant in error, an employee of Fulton County to whom the act of 1939 establishing a pension plan for employees of Fulton County (Ga. L. 1939, p. 571) applies only when he elects to come under it, is not authorized by the act to withdraw therefrom, after having elected to come under the same. His petition for mandamus, seeking to recover funds deducted from his salary as provided by the act, and to prevent further deduction therefrom, stated no cause of action. The demurrer should have been sustained, and mandamus denied.

No. 13375. JULY 16, 1940. In 1939 the State legislature enacted a law to provide an insurance plan for employees of Fulton County. Ga. L. 1939, p. 571. The employees were divided into two classes; as to one the law was mandatory, and as to the other it was optional. The only portions of the act pertinent to this case are sections 12 and 14, which are as follows:

"Section 12. Be it further enacted by the authority aforesaid, that the employees who come under the terms of this act and who are to receive the benefits of this act are such employees of the county other than elective officers and the deputies and employees of such elective officers, and it is intended that this act shall be mandatory in its application to such employees as in this section named, that is, the employees directly employed by the Board of Commissioners of Roads and Revenues for Fulton County, Georgia."

"Section 14. Be it further enacted by the authority aforesaid, that the employees of the county, other than officers elected by the people, such as deputies, clerks in the various departments where the heads of such departments are elected by the people, and the other personnel of the county who are not directly under the control of the Board of Commissioners of Roads and Revenues for Fulton County (and other than the employees in the Welfare Department) may at their option come under the terms of this act. It is intended by this section to grant to such of the personnel as are named and described in this section, and such persons belonging to the class as may be described herein, the right, or option, to contribute two (2%) per cent. of his or her salary to such pension fund and to come under the terms of this act in all particulars just as if such person was a member of the class as set out in section 12 hereof. This option, however, must be exercised by such person within sixty (60) days after this act begins to operate, that is sixty (60) days from the 1st of July, 1939. Thereafter if any new employee enters the county service in the class in this section described, such new employee will have sixty (60) days from the beginning of his or her employment likewise to exercise said option and come under the terms of this act. Once exercising said option such employees are entitled to all the rights and privileges and benefits under this act and are subject to all the conditions of this act to the extent of being retired at sixty-five (65) years of age if subject to such retirement as set out in this act."

J. M. Wallace, a judge's bailiff, who by the terms of the act belonged to the class of employees with whom it is optional as to whether they will come under the act, elected to come under the act, and later attempted to withdraw, but the county would not consent to his withdrawal, and continued to deduct from his wages the percentage provided by the act. He brought a petition for mandamus to compel the treasurer and commissioners to pay him the percentage of his salary withheld since his attempt to withdraw, and to refrain from deducting any amounts in the future. The county officials filed a general demurrer to the petition. On the hearing judgment was rendered overruling the demurrer and making the mandamus absolute. To this judgment defendants excepted. As agreed by the parties, a proper construction of sections 12 and 14 of the 1939 act is all that is required to reach a decision in this case. There is a very definite provision in section 12, that, as to the employees therein made subject to the act, it is mandatory. This means that the employees covered by section 12 have no choice, and are not permitted to escape coming under the provisions of the act. Since this is so, they would not be heard if they attempted to withdraw while continuing in the employment of the county. They can not claim the privilege of nullifying the mandatory provision of the act by simply withdrawing at their election after it has applied to them. While it is true that this case does not deal with one to whom the act is involuntarily applied, but deals with one who is given the free choice as to whether or not he will have it apply to him, nevertheless the issue here is not whether before exercising the option given to him by the act the defendant is bound by it. He crossed this line when he voluntarily elected to come under the act. He now raises the sole question in the case, to wit, whether he can at will withdraw after having elected to come under the act. On this question section 12 is indeed illuminating. Section 14, after providing for defendant and similar employees the privilege of choosing whether or not they shall come under the act, states that it is intended by this option to allow such a person "to come under the terms of this act in all particulars, just as if such person was a member of the class as set out in section 12 hereof." By virtue of the language last quoted the entire application of the act in all particulars to defendant is exactly the same as that to the class in section 12. It is mandatory, and allows no withdrawal or escape. Further in section 14 it is provided: "Once exercising said option such employees are entitled to all the rights and privileges and benefits under this act and are subject to all the conditions of this act."

The law does not authorize the defendant in error to withdraw, but binds him to all the terms of the act, as well as entitles him to its benefits. He is neither entitled to a refund of the money deducted from his salary, nor to have these deductions stopped. The demurrer should have been sustained, and the mandamus absolute denied.

Judgment reversed. All the Justices concur.