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EMPLOYEES RETIREMENT SYSTEM v. LEWIS, Commissioner, et al.
40531.
Declaratory judgment, etc. Laurens Superior Court. Before Judge Ward.
EBERHARDT, Judge.
1. Unless made so by statute a sheriff's deputies and other employees are not employees of the county, and may not be so treated or recognized. A contract made under or pursuant to an unconstitutional statute does not bind county authorities.
2. (a, b) Deputy sheriffs are not "officers of a political subdivision" for whom Social Security payments are to be made by the county under the provisions of Code Ann. 99-2101, et seq. (Ga. L. 1953, Nov. Sess., p. 294, as amended) and under a contract between the county and the Employees Retirement System entered into in accordance with the Act when the deputies do not receive wages from the county, for by the terms of both the Act and the contract the payments are determined by wages paid.
The allegations of the petition essentially are: In 1956 the Retirement System and the county amended their previous contract to bring sheriff's deputies and employees under Social Security, and the county began making payments on these individuals, continuing until September, 1957, when the Supreme Court of Georgia determined that the 1952 Act placing the sheriff on a salary rather than a fee basis of compensation and making the sheriff's employees employees of the county was unconstitutional and void because it had been improperly advertised. Gay v. Laurens County, 213 Ga. 518 (100 SE2d 271). From the time of this decision until the end of 1960 the county did not report and pay Social Security for these persons. 1
The Retirement System seeks a declaration that it is entitled to recover the Social Security payments for this period. The System's contract with Federal Social Security Administration requires it to make payments for all employees covered whether or not the System has collected for them on penalty of deduction from any Social Security money due the State. It is alleged that the System will be put in a position of having to pay Federal Social Security Administration for the deputies and other employees before their status as to Social Security coverage is determined.
The trial court, after overruling general and special demurrers, held that the persons involved were not employees of the county during the period in dispute. To this adverse ruling the System excepts.
This case presents an incidental aspect of the line of litigation beginning with Gay v. Laurens County, 213 Ga. 518, supra. See Laurens County v. Keen, 214 Ga. 32 (102 SE2d 697); Gay v. Lewis, 215 Ga. 317 (109 SE2d 646); Gay v. Crockett, 217 Ga. 288 (122 SE2d 241); Gay v. Laurens County, 217 Ga. 594 (124 SE2d 81). The Employees Retirement System is seeking to have Sheriff Gay's deputies and employees adjudged employees of Laurens County for the period between the Supreme Court's declaration of the invalidity of the sheriff's salary legislation and the time a new sheriff was elected and a new salary bill was enacted.
1. There is no dispute here between the parties that the deputies and employees of a sheriff are not employees of a county under the common law, unmodified by statute. Drost v. Robinson, 194 Ga. 703 (3) (22 SE2d 475). See MacNeill v. Wood, 198 Ga. 150 (31 SE2d 14).
In order to change the common law status of the deputies and employees, the Retirement System relies on the 1956 amendment to the contract between it and Laurens County. It is urged that, since the county agreed that the persons involved were its employees in 1956 and made contributions for them, the contract amendment is still binding on the county. Cases exemplified by Stewart v. Davis, 210 Ga. 278 (79 SE2d 535) are cited. However, cases such as Stewart are distinguishable because the contracts concerned were valid in their inception. Here, the language in the first Gay case, 213 Ga. 518, supra, implies what the last Gay case, 217 Ga. 594, supra, holds: that the 1952 salary Act was void ab initio.
2. (a) As to the deputy sheriffs involved, the System advances the additional contention that a statutory change in their common law status as the sheriff's employees has been made for Social Security purposes by the Act of 1953, as amended (Code Ann. 99-2101, et seq.). The amended Act provides that "The term 'employee' includes an officer of a political subdivision of the State." Code Ann. 99-2102 (c). The conclusion drawn by the System is that a deputy is an "officer of a political subdivision" within this definition.
Taylor, 178 Ga. 689, 692, 173 SE 828; Marshall v. Walker, 183 Ga. 44, 187 SE 81); a member of the county board of education (Stanford v. Lynch, 147 Ga. 518, 94 SE 1001; Clarke v. Long, 152 Ga. 619, 111 SE 31); a county school commissioner equivalent of a member of the board of education (McLain v. State, 71 Ga. 279); and a clerk of the board of county commissioners (Cooper v. State, 101 Ga. 783, 29 SE 22).
On the other hand, members of the board of tax assessors (Barnes v. Watson, 148 Ga. 822 (4), 98 SE 500), a county registrar (Andrews v. Butts County, 29 Ga. App. 302, 114 SE 912), a justice of the peace (Davis v. Mercer, 48 Ga. App. 191, 192, 172 SE 669), a notary public and ex-officio justice of the peace (Overton v. Gandy, 170 Ga. 562, 153 SE 520), the Solicitor of the City Court of Dublin (Graham v. Merritt, 165 Ga. 489, 141 SE 298), the Marshal of the Municipal Court of Atlanta (Strickland v. Houston, 173 Ga. 615 (2), 161 SE 262), and a grand juror (Butts v. State, 211 Ga. 16 (2), 83 SE2d 610) have been held not to be county officers.
Is a deputy sheriff a "county officer"? As we have noted above, a sheriff is so regarded. Truesdel v. Freeney, 186 Ga. 288, 292, supra. "Sheriffs are authorized in their discretion to appoint one or more deputies, from whom they must take a bond with sureties." Code 24-2811. "All sheriffs, deputy sheriffs, coroners, jailers, constables, and other officers of court shall be liable to all actions, suits, and disabilities whatever, which they, or either of them shall incur in respect of any matter or thing whatever relating to or concerning their respective offices." Code 24-201.
"Deputy sheriffs and deputy jailors are employees of the sheriff, whom the sheriffs alone are entitled to appoint or discharge. Board of Commissioners of Richmond County v. Whittle, 180 Ga. 166 (178 SE 534). They have no duties save alone duties of the sheriff, which as his deputy and his agent they are by law authorized to perform. They are required to give bond for the faithful performance of duties, not to the Governor as required of all public officers unless otherwise provided by law (Code 89-402), but to the sheriff whose deputies or agents they are (Code 89-426). The sheriff is required to give bond payable to the Governor, and his bond is conditioned for the faithful performance of his duties as sheriff, by himself, his deputies, and his jailors. Code 24-2805. The sheriff, and not the county, is liable for the misconduct of his deputies. Code 24-2812. The tenure in employment of a deputy jailor or deputy sheriff is dependent, not alone upon the will of the sheriff whose employee he is and who may discharge him when he chooses, but also upon the re-election of the sheriff. Thus it is impossible for such deputies to calculate with any degree of certainty when their employment will terminate. The marked difference in the employment of such deputies and that of employees of county commissioners is that deputies perform duties of the sheriff, which ceases when the sheriff leaves office; whereas employees of the commissioners perform duties of their own in rendering services to the county." Drost v. Robinson, 194 Ga. 703, 710, supra. Accord: McCutcheon v. MacNeill, 197 Ga. 72 (28 SE2d 469).
If not county officers, are deputy sheriffs nevertheless "public officers"? "An office is a public station or employment conferred by the appointment of the government. Any man is a public officer who is appointed by the government and has any duty to perform concerning the public. Nor does it matter that his authority or duty is confined to narrow limits." Polk v. James, 68 Ga. 128 (2). "Public officers are, in this country, but the agents of the body politic, constituted to discharge services for the benefit of the people, under laws which the people have prescribed." State ex rel. Savannah v. Dews, R. M. Charlton, 397, 400; Walton v. Davis, 188 Ga. 56, 58 (2 SE2d 603). Dispensary commissioners have been held to be public officers, Dallis v. Griffin, 117 Ga. 408 (43 SE 758), Waters v. McDowell, 126 Ga. 807, 56 SE 95), as have county policemen, Goss v. Gordon County, 35 Ga. App. 325 (133 SE 68), and an accountant employed to examine and audit the books and records of the county. Stelling v. Richmond County, 81 Ga. App. 571 (59 SE2d 414). However a grand juror is not. McDuffie v. Perkerson, 178 Ga. 230, 233 (3) (173 SE 151, 91 ALR 1002).
The problem of the status of a deputy sheriff is somewhat confused and confounded by Hartshorn v. Bank of Gough, 17 Ga. App. 483 (87 SE 720), holding that "There is in this State such an office as deputy sheriff"; Culpepper v. U. S. F. & G. Co., 199 Ga. 56 (1) (33 SE2d 168) where it was held that "A deputy sheriff while proceeding en route to serve a jury summons is acting in his official capacity"; and Gay v. Healan, 88 Ga. App. 533, 540 (77 SE2d 47) where it was asserted that "a deputy sheriff is not an employee of the sheriff, but is an employee of the county wherein he serves, and is merely appointed by the sheriff," as well as the case of Johnson v. U. S. F. & G. Co., 93 Ga. App. 336, 338 (91 SE2d 779) holding that "There is no question but that a deputy sheriff occupies the dual capacity of public officer and servant of the sheriff under whom and by whose appointment he serves, a sort of hybrid status."
Reviewing this confused and confusing authority, we see that deputy sheriffs are not "county officers" within the constitutional provision though they may be "public officers." We doubt that the sheriff's deputies were "officers of a political subdivision" within the meaning of the relevant legislation during the period here involved, particularly in the light of Drost v. Robinson, 194 Ga. 703, supra, and McCutcheon v. MacNeill, 197 Ga. 72, supra.
(b) We think the language of the very statute relied upon by the System, as well as language in the contract between it and Laurens County, settles the matter of whether the county must make the Social Security payments for the deputies during the period involved, whether or not they were officers of the political subdivision in fact or within the meaning of Section 2 (c) of the Act (Code Ann. 99-2102c). The Act does provide, inter alia (Code Ann. 99-2102f), that the term "political subdivision" within its terms "means counties and incorporated towns and cities . . . etc." (Emphasis added) It is further provided (Code And 99-2104) that each political subdivision may submit and have approved its plan for bringing its employees under the Social Security coverage and upon approval of the plan and its adoption by the employees to be effected in a referendum, it shall be required to make payments to the contribution fund "in consideration of the employees retention in, or entry upon, employment after enactment of this Chapter, to impose upon each of its employees, as to services which are covered by an approved plan, a contribution with respect to his wages (as defined in Section 99-2102), not exceeding the amount of tax which would be imposed by Section 1400 of the Federal Insurance Contributions Act if such services constituted employment within the meaning of this Chapter, and to deduct the amount of such contributions from his wages as and when paid. Contributions so collected shall be paid into the contribution fund in partial discharge of the liability of such political subdivision. . . . Failure to deduct such contribution shall not relieve the employee or employer of liability therefor." (Emphasis supplied). Substantially the same provisions appear in the contract between the System and the county.
Under the provisions of the Federal Insurance Contribution Act there is a tax levied for its purposes both upon the employee, by deduction from his wages, and upon the employer who must share a part of it. 26 USCA 3101 et seq. It is the equivalent of that tax that is to be paid into the contribution fund under the Act of 1953, as amended, and under the contract between the system and the county.
Quite obviously there is no obligation on the part of an employer to make the payment unless the employer pays wages in some form to the employee, for unless some wages are paid there is nothing from which to deduct. During the period here involved the county paid no wages to the deputy sheriffs. They were paid by the sheriff. There was no way by which the county could have deducted anything from the wages paid by him to the deputies. They did not work for the county; rather they worked for the sheriff. Whether he was required to report them as his employees and make Social Security payments on them is not before us. But we do not think that the law requires or authorizes the county to make the payments on employees of some individual, or to agree to do so.
When not on a salary a sheriff's compensation by way of fees and other emoluments for making arrests, maintaining the jail, attending court, serving writs and other services required or authorized by law to be performed accrue to the sheriff, whether performed by him or by his deputy, whether paid by individuals, the county or whomever. Under the fee system the compensation of a deputy sheriff accrues under and is dependent upon his private contract with the sheriff and he can have no claim against the county for it. But when the office is placed on a salary basis provision is generally, if not always, made at the same time for the payment of salaries to the sheriff's deputies (see, for example, Ga. L. 1953, Nov. Sess., p. 2547, and Ga. L. 1960, p. 2072) so that the county is liable for and makes payment of their compensation. Thus when the sheriff and his deputies are paid salaries the deputies are employees, if not officers, of the county and there is no problem or question of their coverage under the Act of 1953 (Code Ann. 99-2101, et seq.). Since the sheriff himself is a county officer and since a considerable portion of the compensation accruing to him by way of fees, etc., is paid by the county or county authorities, it would seem to pose no problem to find him covered under the Act of 1953, whether on salary or the fee system.
We conclude that absent any payment of wages to them by the county there was neither any obligation on its part to make any deductions or payments, for the law does not require it to do that which it can not do--nor any intention on the parties to the contract that it be done.
Judgment affirmed. Bell, P. J., and Jordan, J., concur.
Notes
1  The Act of 1952 placing the sheriff on a salary was substantially re-enacted in 1960, Ga. L. 1960, p. 2072, and the county resumed payments after the effective date of the new Act.
2  However when the office is created by special statute under which he is named by the county board of education and is not elected by the voters, he is held to be an officer of the board and not of the county. Richter v. Board of Education, 149 Ga. 32 (99 SE 28).
H. Dale Thompson, contra.
Eugene Cook, Attorney General, James H. Therrell, Benjamin L. Johnson, Assistant Attorneys General, for plaintiff in error.
DECIDED FEBRUARY 27, 1964 -- REHEARING DENIED MARCH 19 AND APRIL 2, 1964.
Friday May 22 21:36 EDT


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