Opinion
39884.
DECIDED FEBRUARY 8, 1963.
Action for damages. DeKalb Civil and Criminal Court. Before Judge Morgan.
E. T. Hendon, Jr., for plaintiff in error.
George P. Dillard, Hubert O. Edwards, Robert E. Mozley, contra.
1. "A county is not liable to suit for any cause of action unless made so by statute" ( Code § 23-1502); and where suit is instituted against a county, the petition must show the county's statutory liability in order to set forth a cause of action.
2. Since the DeKalb County Merit System Act (Ga. L. 1956, p. 3111) is the authority upon which the plaintiff's right of redress against the county is predicated, the plaintiff must pursue the remedies set forth in said act and cannot bring this action at law to recover the alleged damages sustained by him as a result of the termination of his employment by the defendant county.
DECIDED FEBRUARY 8, 1963.
This was a suit by Cecil R. Anderson against DeKalb County to recover damages sustained by him as a result of the termination of his employment as a patrolman with the DeKalb County Department of Public Safety. The petition alleged the following facts: That DeKalb County has established a merit system for its employees pursuant to an act of the General Assembly of the State of Georgia approved March 6, 1956 (Ga. L. 1956, p. 3111); that the Commissioner of Roads and Revenues of DeKalb County has approved rules and regulations pursuant to said act governing the operation of said merit system; that the plaintiff was employed by DeKalb County, Georgia, on January 1, 1956, as a patrolman with the Department of Public Safety and remained in said employment until on or about January 27, 1960, when he was directed by the head of said Department of Public Safety, Chief Brady Knight, not to return to work, and his pay as a patrolman was terminated by the Commissioners of Roads and Revenues as of January 27, 1960; that he had acquired a permanent appointment as a patrolman with the DeKalb County Department of Public Safety pursuant to Article 3, Section C, of the rules and regulations adopted by the Board of Commissioners of Roads and Revenues of DeKalb County in accordance with the act creating the DeKalb County merit system; that he was placed under the DeKalb County merit system in his capacity as a patrolman with the Department of Public Safety as provided by Section 1, Subsection B, of the act creating the DeKalb County merit system; that Article 12, entitled "Separations," Section D, Subsection 1, of the rules and regulations adopted by the Commissioners of Roads and Revenues of DeKalb County governing the merit system of DeKalb County reads as follows: "The department head, upon notice in writing to an employee stating specific reason therefor, may dismiss an employee for causes as herein defined . . ."; that, at the time of his separation from the Department of Public Safety of DeKalb County, he was not notified in writing by the department head or any other authorized person of DeKalb County of any specific reason for his discharge; nor has he been notified in writing since said date of discharge to the time of filing this petition of any specific reason for his discharge by any person; and that he demanded of the department head that he be permitted to return to work on or about January 30, 1960, and was advised by said department head that your petitioner would have to get it cleared through the merit system council. The petition further alleged that the plaintiff's monthly pay rate was $344 as a patrolman with the DeKalb County Department of Public Safety; that he has been ready, willing and able to perform the services required as a patrolman with said department at all times since his separation; that said separation was not caused by any curtailment in funds, reduction in staff, or abolition of the job held by such employee; that he has demanded of the defendant, through C. O. Emmerich, Chairman of the Board of Commissioners of DeKalb County, that his salary be paid to him, but the defendant has failed and refused to pay the same; and that he is entitled to receive his pay at a monthly rate of $344 from January 27, 1960, to the date of filing this petition, in the amount of $9,116.
The defendant's general demurrer to the petition was sustained and the exception is to that judgment.
1. "A county is not liable to suit for any cause of action unless made so by statute" ( Code § 23-1502); and where suit is instituted against a county, the petition must show the county's statutory liability in order to set forth a cause of action. Seymore v. Elbert County, 116 Ga. 371 ( 42 S.E. 727); Newberry v. Hall County, 52 Ga. App. 472 ( 183 S.E. 664).
2. It is contended by counsel for the defendant that the trial court properly sustained the general demurrer to the petition for the reason that the plaintiff's right to maintain this action is predicated upon the DeKalb County Merit System Act (Ga. L. 1956, p. 3111), and that such act does not give the right to sue the county directly without proceeding through the administrative procedures outlined therein, which under the allegations of the petition, has not been done by the plaintiff in this case.
With this contention we must agree. Section 2(a) of said act, supra, p. 3112, authorized the establishment by the governing authority of DeKalb County of a merit system council and section 4(b) of the act, supra, p. 3114, provided that said council shall hear appeals from any employee, coming within the provisions of said act, who claims to have been improperly dismissed; and section 5 of said act, supra, p. 3115, specifically provides that such employee shall have the right of appeal to the merit system council and states that the decision of the council shall be binding upon the governing authority of DeKalb County as to whether such dismissal was for proper cause. While the act makes no express provisions for review by the courts of this State of the decisions of this council, the Supreme Court in the recent case of Anderson v. McMurry, 217 Ga. 145 ( 121 S.E.2d 22), held that the writ of certiorari lies to review the rulings and findings of such body. Accordingly, it is our opinion that, since the DeKalb County Merit System Act, supra, is the authority upon which the plaintiff's right of redress against the county is predicated, the plaintiff must pursue the remedies set forth in said act and cannot bring this action at law to recover the alleged damages sustained by him as a result of his dismissal by the defendant through its Department of Public Safety.
The fact that the plaintiff was not notified in writing of the reasons for his discharge by the appropriate department head as provided by the rules and regulations adopted by the governing body of DeKalb County pursuant to the provisions of said act would only afford grounds for review of the plaintiff's dismissal by the merit system council and would not, as contended by the plaintiff, deny him the right of review by said council and obviate the necessity of complying with the administrative procedures set forth in said act. The trial court did not err therefore in sustaining the general demurrer to the petition.
Judgment affirmed. Nichols, P. J., and Frankum, J., concur.