Board of Lights & Waterworks v. Dobbs

Hill, J.

(After stating the foregoing facts.)

1. The controlling question in the case is whether one person can act in the double capacity of mayor of Marietta and of treasurer of the Board of Lights and Waterworks of that city, and receive compensation, or salaries, for the discharge of the duties of both positions. It is insisted that Brumby as mayor cannot hold that office and receive a salary for the discharge of his duties as mayor, and also hold the office of treasurer of the board and receive another salary therefor; in other words, that he cannot at the same time hold two city offices and draw two salaries. The act of 1909 (Acts 1909, p. 1100), amending the act of 1906 (Acts 1906, pp. 846-848), authorizing the mayor and council of the City of Marietta to hold an election to determine whether or not bonds should be issued by the City of Marietta for the purpose of purchasing, establishing, maintaining, building, and acquiring a system of waterworks in the City of Marietta, etc., provided “that it shall be the duty of said board of water and lights to elect a treasurer, said treasurer being member of board, whose duty it shall be to receive and disburse all the funds arising from the sale of bonds of the City of Marietta for sewerage, waterworks, and light purposes, and to receive and disburse all subsequent appropriations and revenues acquired or derived in the operation and maintenance of said system of lights, waterworks, and sewerage, and said board shall have the power and authority to fix the compensation and to set bond for treasurer, the amount of which shall not be less than the whole amount of money that may come into his hands,” etc. It will be seen, therefore, that the legislature has conferred upon the board authority to elect a treasurer and to fix his compensation. The salary pa3'ment which it is sought to enjoin was fixed by the board on January 22, 1920, for treasurer alone; and whatever salary may have been fixed previously for any other services rendered by Brumby as manager or otherwise, the present salary was fixed for the express purpose of compensating him for his services rendered as treasurer of the board, to which position he had been elected by the board as authorized by the act of 1909 (supra); and therein lies the distinction between the present ease and the case of Twiggs v. Wingfield, 147 Ga. 790 (95 S. E. 711, L. R. A. 1918E, 757), relied upon by the defendants in error in this case. In that case it was held that a member of the flood commission of the City of Augusta could not legally contract with that commission for the performance of duties which, as a member of such commission and as commissioner of public works for. the City of Augusta and ex-officio city engineer, it was made his official duty to superintend and supervise on behalf of the city; and that such contract was contrary to public policy and illegal. But it will be noted that in that case there was no express authority conferred on the commission and the official to contract; here there is express authority conferred on the board to elect a treasurer from among its members and to fix his compensation. In other words, the legislature has declared in this ease what it had not done in the Twiggs case, viz., what the public policy was with reference to the board contracting with the treasurer. In the absence o’f express legislative authority it might well be said, as it was in the Twiggs case, that such 'contracts were against public policy. But it has nowhere been held, so far as we are aware, that where the legislature has expressly provided for such contracts, such legislative authority is illegal and contrary to public policy. The expression of the legislature is conclusive on the question of public policy.

It is insisted, even if the salary fixed by the board for the treasurer is legal, that Brumby can not hold two offices at the same time and receive two salaries from the same municipality. We know of no inhibition against his doing so where there is express legislative authority. It is true that no person can hold in any manner whatever, or be commissioned to hold, more than one county office, except by special enactment of the legislature heretofore or hereafter made. Civil Code (1910), § 259. It will be observed that that section applies to one who attempts to hold two county offices without express legislative authority. But in the instant case express legislative authority is conferred on the mayor of Marietta, when duly elected, to hold the office, and to receive the salary therefor; and also on the treasurer of the board to hold that position and to receive the salary fixed by the board. The mayor of Marietta is not a councilman or alderman, so as to bring him within the provisions of section 886 of Civil Code of 1910. Akerman v. Ford, 116 Ga. 473 (42 S. E. 777).

2. It is insisted that, even if the treasurer was elected according to law, yet the salary named by the board is excessive, and therefore is illegal. It is true that the petition alleges that it is excessive and illegal, and the petition was sworn to; but this allegation is a mere conclusion of the pleader and is not such evidence as would authorize the court to hold that the amount named was excessive. The burden was upon the plaintiffs to prove the material allegations of the petition. They have failed to carry this burden in this particular, and therefore the trial court erred in granting the injunction.

3. Headnote 3 needs no elaboration.

Judgment reversed.

All the Justices concur.