Opinion
13538.
NOVEMBER 13, 1940.
Petition for mandamus. Before Judge Moore. Fulton superior court. August 20, 1940.
Robert B. Blackburn, for plaintiff.
J. C. Savage, E. L. Sterne, J. C. Murphy, and Frank A. Hooper Jr., for defendants.
The act of August 20, 1927, as amended by the act of 1935, and as further amended by the act of 1937 (cited in the accompanying statement of facts, infra), providing certain old-age benefits for employees of the City of Atlanta, and, in case of death, to the widow, containing in section 2 of the act of 1927, supra, the provision that the employee "shall have served twenty-five years in active service of such city at the time of his retirement;" the petition for mandamus and the agreed statement of facts showing that the employee entered the service on March 14, 1914, and died April 25, 1939; and there being an interruption of service commencing September 15, 1921, and ending January 1, 1922, and another from August 1, 1923, to February 3, 1924; Held. that the character of the interruptions above referred to was such as to deny to the widow compensation, since they show that the employee had not "served twenty-five years in active service," within the meaning of the act.
Judgment affirmed. All the Justices concur.
No. 13538. NOVEMBER 13, 1940.
A petition for mandamus was brought by Mrs. Nannie Kelsey, the widow of W. J. Kelsey, against the mayor, the comptroller, and the treasurer of the City of Atlanta, to compel payment to her of the pension provided for the widow of one who for twenty-five years had served as the employee of a city having a population of more than 150,000, under the act of the General Assembly approved August 20, 1927 (Ga. L. 1927, p. 265), as amended by the act of March 28, 1935 (Ga. L. 1935, p. 445), as amended by the act approved March 30, 1937 (Ga. L. 1937, p. 744). The petitioner alleged, that her husband became an employee in the sanitary department of Atlanta on March 14, 1914, and died on April 25, 1939, after rendering to the city more than twenty-five years of service; that he complied with all the rules and regulations of the acts above referred to, made all payments therein required, and designated his widow as a person to whom said pension should be paid under the provisions of said acts; and that petitioner and her husband lived together as man and wife for more than five years before the date of his death.
The petition was heard, without a jury, on an agreed statement of facts, in which were admitted the allegations of the petition, except in two instances when Kelsey was not on the city's pay-roll, as follows: On September 15, 1921, on request of the United States Government, and for a period commencing on that date and ending January 1, 1922, Kelsey performed duties as an inspector of surface toilets in the City of Atlanta, continuing to wear his customary uniform worn by city employees of the sanitary department, and for said period received his compensation from the United States Government; the plaintiff testifying that during said period he received "his regular salary." On July 20, 1923, the committee on sanitary affairs of the City of Atlanta ordered that he and several other named persons be dropped from the pay-roll in the sanitary department, "for the good of the service, and for the further reason that the city council had failed to appropriate the money to pay them." On February 15, 1924, by order of that committee, he was re-elected as an employee of said department, and remained in service until his death. He was not paid by, nor was he on the pay-roll of, the city from the first day of August, 1923, up to February 3, 1924. The judge denied a mandamus absolute, and the plaintiff excepted.