55 S.E.2d 649 | Ga. Ct. App. | 1949
Where the charter of the City of Augusta in effect provides that, if an employee be discharged by ordinance of the governing authority of the city, by the abolition in bad faith of the position held by such employee, that such abolition is resorted to as a subterfuge to discharge the employee, and that such employee shall have his action therefor as for a breach of contract, and where the allegations of the petition set forth sufficient facts to authorize a jury to find that the governing authorities so acted, the court did not err in overruling a general demurrer to the petition.
"Section 10. Nothing herein contained shall restrict the rights of the City Council of Augusta to bona fide abolish any position held by any permanent employee or other employee, provided, however, that if abolition of position is resorted to as subterfuge to discharge such employee, he shall have his action therefor as of breach of contract.
"Section 11. No permanent employee shall be discharged, demoted, or suspended for any political belief, or failure to vote in any particular way, nor for membership in or affiliation with any organization, labor union or other association that does not affect his efficiency as an employee."
The petition alleged: that at the time the City Council of Augusta adopted said ordinance the employee had complied with all of the terms of said act, had served a great deal more than the probation period set out in section 3, paragraph (e) of said act, and had complied with paragraphs (g) and (i) of section 3 of said act, and was and had been in continuous employment and was a permanent employee at all times herein mentioned, and that the act on the part of the City Council of Augusta in passing said ordinance was a scheme and device illegally to discharge the petitioner in violation of the terms of said act approved December 31, 1937, and the ordinance was used as a subterfuge to discharge the employee and was not a bona fide abolishment of the position entitled city auditor; that immediately upon the employee's discharge, the Council of the City of Augusta entered into negotiations with Victor Markwalter, a certified public accountant residing in the City of Augusta, and did engage the services of Mrs. Joanne P. Sweeney and Mrs. Julia E. Watkins, and did pay to Mrs. Sweeney and Mrs. Watkins $570 each for the balance of the year 1947 to compile information to be furnished Markwalter in doing said auditing work, who took over the work previously performed *86 by the employee and did the general auditing work of the various departments of the City of Augusta, for which he was paid $14,825, and during the month of December, 1948, the said Markwalter was again engaged by the City of Augusta to do general auditing work and would receive large sums of money for his services for performing general auditing work formerly performed by the employee; that there has at all times been the need for services of an auditor to audit the various departments of the City of Augusta and the employee performed such services up to and until his illegal discharge, and he is still ready able and willing to perform said services and now stands ready, able and willing to perform them; that immediately upon receipt of notice from the clerk of council of the passage of said ordinance the employee notified the City of Augusta in writing to the effect that he considered his position secure under the Tenure Act, and that he still considered himself the city auditor, and that his services were available, and the offer of his services was continuous; that since the existence of the City of Augusta as a corporation, including the entire tenure of the employee, the position of city auditor has never been a full-time job and the employee did outside work at all times during the time that he held the position of city auditor and this was well known to the City of Augusta and no complaint was ever made to the employee, and that prior to the beginning of the employee's tenure. Victor Markwalter and Georgia Baird, both of whom were auditors, did the work of city auditor and never took said work as a full-time job, all of which was well known and understood by the City of Augusta; that since his illegal discharge he has continued to do various auditing work in the same manner that he did prior to his discharge; that he could have carried, on the work as city auditor for the City of Augusta and performed the same amount of work for other persons that he has performed since his discharge; and that his discharge had resulted in a net loss to the employee for the amount that he would have been paid under the salary schedule provided for the city auditor.
The petition further alleges: that during the employee's entire tenure of office he performed his work in a satisfactory manner, no complaint was ever made, and no charges were ever preferred against him under the act aforesaid under which the *87 employee worked from the date of the approval of said act until the date of his discharge; that in January, 1947, a new party took over the majority of the City Council of Augusta, said party being generally known and terming themselves as the "Independent Party;" that the first notice that the employee had that he was discharged was when he received the letter from the clerk of the Council of the City of Augusta, dated March 18, 1947, to which reference has previously been made; that at no time from January 1, 1947, up and until his illegal discharge or since then did the City Council of Augusta complain as to the employee's efficiency or make any other complaint or prefer any charges of any kind against the employee; that he was willing and anxious to continue to carry on his duties as he had for fourteen years prior to his discharge; that the abolition of his position was illegal and void and contrary to the act of the General Assembly above referred to, was violative of the employee's contract with the City of Augusta; that demand was made upon the City of Augusta as provided by law; and that he has been damaged in the sum of $5300 principal, and $378 interest from April 1, 1947, to the date of the filing of the petition.
The general demurrer of the City of Augusta as finally enlarged and renewed challenged the petition of the employee on the ground: that no cause of action was set forth; that no cause of action was set forth for the reason that the motive of the City Council of Augusta in passing the ordinance set forth in the petition was not subject to judicial inquiry; that no cause of action was set forth against the City of Augusta because the petition did not show how or wherein the passage of the ordinance was a scheme or device to illegally discharge the employee, nor did it set forth the particulars in which the ordinance violated the act of the General Assembly referred to, or how or wherein the passage of the ordinance was used as a subterfuge to discharge the employee; and that these general allegations, along with the allegation that the ordinance was not a bona fide abolishment of the employee's position were conclusions without the necessary specific allegations of fact supporting them and could, therefore, add no strength to the petition.
The demurrer of the City of Augusta also contained certain special grounds which were not passed upon by the court, but the *88 court overruled the general demurrer and the case is before the court on the assignment of error upon this order. 1. We will first deal with the contentions of the City of Augusta as to why the court committed reversible error in overruling the general demurrer to the petition and dismissing it. Since we have set out the sections of the act of 1937 (Ga. L. Ex.-Sess., 1937-1938), amending the charter of the City of Augusta, if and when occasion arises, we will refer to these sections by numbers without again repeating the provisions of them.
(a) It is contended that the petition contains no allegation to legally show that the City Council of Augusta in abolishing the position of auditor, which position was held by the employee, was not in the exercise of its unrestricted right to bona fide abolish any position created by it and that the petition does not allege that said position has at any time since the passage of the ordinance abolishing said position, recreated it; but to the contrary it appears from the allegations of the petition that Victor Markwalter, an independent certified public accountant, was employed thereafter to do general auditing work in various departments of the City of Augusta for the balance of the year 1947, and was again contracted with during December, 1948, to do general auditing work for another period. Our attention is called to the fact that the Supreme Court in the case of Thompson v.Augusta,
(b) Counsel for the City of Augusta further contend that the court has no authority under the appellate decisions of this State and decisions of foreign jurisdictions, to inquire into the motives of legislative bodies in the passage of laws within their jurisdiction. In support of this contention counsel cite the case of Puckett v. Young,
(c) It is further contended that the petition properly construed, charges a conspiracy on the part of the Mayor and Council of the City of Augusta to abolish the position which the employee held, and that such constituted fraud in law. It is contended that the allegations of the petition are so general that they fall short of charging fraud, and for that reason the court erred in overruling the demurrer. In this connection our attention is called to Johnson v. Ellington,
2. (a) It not contended here that the ordinance should be declared illegal and should be set aside. The ordinance was duly passed and the authorities of the City of Augusta had authority to pass it. But the contention is that it was not passed in good faith and was passed as a subterfuge in violation of the amendment of the charter of the City of Augusta and that for this reason the employee has a right of action for a breach of his contract. We think that the act itself gives the right to show motive and the regulations of the act hereinabove quoted provided that if the ordinance is not passed in good faith and is a mere subterfuge, the employee has his right of action. It is our opinion that the allegations of the petition are sufficient to show *93 that the passage of the ordinance abolished the position of the employee and illegally discharged him, and as we have hereinabove stated, a jury would be authorized to find, if there is evidence to substantiate the allegations of the petition, that Council acted in bad faith in abolishing this position as a subterfuge and thereby in effect discharging the employee.
The court did not err in overruling the general demurrer to the petition.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.