53 Ga. App. 861 | Ga. Ct. App. | 1936
D. L. Barfield brought suit against the City of Atlanta, alleging that during the years 1932, 1933, and until June 27, 1934, he was employed by the city as a driver in the fire department, at a salary of $185.50 per month; that the defendant deducted certain amounts from the compensation that was due the plaintiff under the rate of pay fixed by law, amounting to $721.19, as shown by itemized statement attached to the petition, which deductions were illegal and made without the consent of plaintiff. He prayed judgment for this amount with interest. The defendant, answering, alleged “that in January of 1932, the City of Atlanta faced a financial crisis. Due to a world-wide financial and business depression the revenue of the City of Atlanta was materially curtailed. It became necessary that rigid economies be practiced in every department of the city government. Salary reductions or contributions became necessary, or as an alternative a material reduction in the personnel. With reference to the fire department, the City of Atlanta was faced with two alternatives, one to reduce the personnel and the other to obtain contributions from the salaries of all city employees. Both alternatives were submitted to' the officers and members of the fire department, including the plaintiff herein. It was unanimously decided by the officers and members of the fire department that rather than reduce the personnel that each member of said department would make the same salary contribution that was required of other non-school employees of the city. The plaintiff herein participated in said deliberations and agreed to the plan. Thereafter the plaintiff was paid each and every month the salary due and earned, and each and every check bore the following endorsement: ‘In full
After introduction of evidence, the court, without the intervention of a jury, rendered judgment for the defendant. The plain
In 1913 the General Assembly of Georgia passed an amendment to the charter of the City of Atlanta, providing that when ten per cent, of the registered voters shall petition the council to pass a specific ordinance, an election by the people shall be called within thirty days after the petition has been read in council, and if the ordinance receives a majority of the votes cast, it shall become operative and can not thereafter be repealed except by an election similarly called. Ga. L. 1913, pp. 507, 599, sec. 215(b). The evidence shows that pursuant to this charter provision an election was called in 1925, and the voters of the city adopted an ordinance fixing the salary of city firemen, the monthly salary of plaintiff under such ordinance being $185.50; that from January 1, 1932, to June 30, 1934, when the plaintiff was discharged for cause, his salary was reduced in the same proportion'as other firemen, such reduction being necessary because of the financial condition of the city; that the plaintiff received his pay twice a month; that he remained in the employment of the city for two and a half years during the period of reduced pay, and did not sue or make any claim on account of the reduction of his salary until after he was discharged; that on the back of each pay-check was the following, to which the plaintiff agreed and which he signed: “If correct, endorse and deposit in any bank for collection. If incorrect, return at once to the paymaster who signed this check. By the endorsement of this check the payee acknowledges the payment in full settlement of the account for which this check is drawn, and also acknowledges that any deductions from the full amount due are made in accordance with the payee’s written request. The endorsement must agree exactly with the payee’s name on the reverse side of this check. In full for salary [stating the time covered by the chock]. D. L. Barfield.”
The plaintiff contends that he was a public officer whose salary was fixed by law; that the reduction thereof was unauthorized and against public policy; that the agreement he signed was not a waiver or an estoppel; and that the ordinance fixing his salary was held valid in Green v. Atlanta, 162 Ga. 641, 645 (135 S. E. 84). The ruling in the Green case, that “the court did not err in holding section 1 of the ordinance in question [which fixed the
The written acknowledgment by the plaintiff that his pay-checks were in full settlement of the salary due him, and that “any deductions from the full amount due are made in accordance with the payee’s written request,” was not made without consideration. The evidence showed that on account of the enormous deficit with which the city was confronted it would have been necessary to reduce the personnel of the fire department if salaries had not been reduced. The plaintiff might or might not have been one of those losing employment if the personnel had been reduced. He wished
The foregoing ruling is more particularly applicable to the instant case, because of a statute in Georgia providing that “A person may waive or renounce what the law has established in his favor, when he does not thereby injure others or affect the public interest.” Code, § 102-106. See also Mutual Life Insurance Co. v. Durden, 9 Ga. App. 797 (2) (72 S. E. 295). It does not appear that the agreement which the plaintiff signed in the instant case was adverse to the public interest, or in violation of public policy. “The rule supported by the weight of authority is that a municipal officer who continues to hold his office for the full term, and receives his compensation at a fixed rate without dissent, thereby waives his right to claim a higher rate named in some act or ordinance.” 43 C. J. 702, 907, §§ 1173(5), 1660(e). In Lehman v. Toledo, 48 O. App. 121 (192 N. E. 537), where it was held that the agreement to accept less than the sum fixed by law was a valid agreement, the court said: “Each [employee] signed the agreement with full knowledge of the facts and of the financial condition of the city, and that in determining its budget for the year the city was relying thereon.” In Brigham v. New York, 191 App. Div. 866 (182 N. Y. Supp. 145), an action to recover the difference between the fixed salary and the reduced salary, the court held that after the employee accepted the reduced salary he could not recover the difference; and that this was true regardless of civil-service rules designating the grades of employees and rates of pay. See also McCarthy v. McGoldrick, 266 N. Y. 199 (194 N. E. 406); Ryan v. N. Y. City, 177 N. Y. 271, 279 (69
The first special ground of the motion for new trial alleges that the court erred in admitting evidence as to the revenue of the city; and ground 3 alleges that the court erred in admitting the following evidence: “I am city comptroller. My duties are to keep the financial records of the city; to keep a record of all cash that comes into the city and all money that is paid out; I occupied that position prior to 1930 and up to the present time. The total receipts of the city for previous years were: for the year 1930, $9,721,178.38; for the year 1931, $9,383,834.31; for the year 1932, $8,671,898.72; for the year 1933, $8,379,169.79; for the year 1934, $8,879,106.78. I couldn’t say exactly the total reductions in salaries to firemen beginning with 1932 and extending through to the present time; but it is and has been around $700,000 a year based on base salaries, and the reductions I would say for 1932, 1933, and 1934 will be over $300,000. There was a deficit of $1,148,822.16 in the city treasury January 1, 1932. A deficit means that according to the fixed expenses of the city and the operation of the city, that the receipts lacked $1,148,822.16 of meeting the fixed expenses in the operation of the city government; in other words, the city not only had no money the first day of January, 1932, but owed that much money, and had no money to pay with. Since that time the deficit has increased, and has never decreased. Beginning in 1932 and extending through 1934, in order to get the city’s expenses down to the size of its revenue and income, there has been quite a drastic cut in the personnel of the city. In 1932 or 1933 a man was employed specifically to go through the payrolls of the city to see if certain eliminations could be made. There was a good number of them made. As to public improvements, such as streets, sidewalks, sanitary improvements, etc., the city has practically since 1932 abandoned all capital outlays for almost everything, except in one or two instances, which amounted to very little. The reductions have been uniform throughout the entire city government, except the school department, and they made their own reductions. If the city were compelled to restore this $300,000 to the pay-roll of the fire department, in my opinion the only places it could come from would be from the pay-rolls of the city, by reason of the fact that there are certain fixed charges upon
It suffices to say that the other grounds of the motion show no cause for a reversal of the judgment. The plaintiff with full knowledge of the facts accepted, without protest, a reduction of his salary, agreeing in writing that the amounts received were in full payment, and that the deductions were made in accordance with his written request; he had a right to waive what the law had established in his favor; and he remained in the department for two and a half years after the reduction was effective. The
Judgment affirmed.