178 Ga. 703 | Ga. | 1934
On January 4, 1932, J. A. Peacock was elected marshal and chief of police by the mayor and council of the City of Dublin, for the years 1932 and 1933. He immediately entered upon the duties of the office, and filed his bonds for the faithful performance thereof, in stated sums, which were duly approved. Prior to the election, and at the same meeting, the mayor and council fixed the salary of marshal and chief of police at $110 per month. On March 20, 1933, the mayor and council passed a resolution which declared: “ That all salaries of employees drawing over $50 per month be cut fifteen per cent., beginning March 1st.” Peacock instituted an action against the city, the mayor, and the members of the city council, seeking to annul the resolution and enjoin against reduction of his salary. The petition was not projected on the theory that petitioner was not an “employee” and that the ordinance did not apply to him, but on the contrary it was alleged that the resolution reduced “the salary of petitioner fifteen per cent.” The alleged ground for annuling the ordinance was that it was “in violation of a solemn contract” between petitioner and the city, in virtue of his election to office and his acceptance and qualification for office. It was further alleged: “That unless this court intervenes in equity, a multiplicity of suits will be the result, in that it will be necessary for your petitioner to bring a separate mandamus proceeding, ordering the mayor and council to issue him his warrant monthly, according to the terms of the original contract.” The prayers were: (a) that the resolution passed .on March 20, 1933, be declared null and void; (b) that the mayor and council of the City of Dublin be restrained and enjoined from issuing warrants to petitioner for less amount than as contained in his original contract; (c) for general relief.
Defendants interposed a demurrer on the ground that no cause of action is set forth, and that the petition shows that the plaintiff is not entitled to the relief sought. The defendants also filed an answer. The judge overruled the demurrer. The case having been submitted to him on both the law and the facts, he adjudged that the injunction be made permanent, and that the ordinance in question be decreed null and void. The defendants excepted.
Section 8 of an act approved August 19, 1919 (Ga. L. 1919, pp. 939, 942), amending the above charter, provides in part: “That after January 1, 1922, all minor officers shall be elected at the time that the mayor and four aldermen are sworn in, and to hold said offices and discharge the duties thereof for two years, unless sooner removed by said mayor and aldermen for cause.”
In Johnson v. Brooks, 139 Ga. 787, 791 (78 S. E. 37), it was said: “cIt has been often held that an officer’s right to his compensation does not grow out of a contract between him and the State
In the instant case the controlling question is whether the plaintiff, in virtue of his election and qualification as marshal and chief of police, had a contract with the City of Dublin to serve in such capacity for the monthly salary provided by the mayor and council at the time of his election. In view of the foregoing authorities there was no such contractual relation. It follows that under the allegations of the petition the plaintiff was not entitled to the relief sought, and that the judge erred in overruling the general demurrer.
Judgment reversed.