Employees of Fulton County welfare department are not employees of Fulton County in contemplation of the constitution, article 7, section 6, paragraph 2, as amended by resolution passed by the General Assembly on March 24, 1939, and ratified on June 6, 1939. That portion of the act approved March 20, 1943, amending the act of 1939 (Ga. L. 1939, p. 571), which puts the employees of Fulton County welfare department under the terms of the county-pension act offends the above provision of the constitution and is void.

No. 14903. JULY 6, 1944. REHEARING DENIED JULY 18, 1944.

Douglas Wood, director of the department of public welfare of Fulton County, and some forty employees of that department, filed in Fulton superior court a petition for mandamus against Mabel Abbott MacNeill, as treasurer of Fulton County and as ex officio treasurer of the employees' pension fund of Fulton County, seeking to require the defendant to accept payments from the petitioners to apply on a pension fund. All of the petitioners except one were employees of the county welfare board, and this exception raises no issue in the determination of the case. It is alleged that the petitioners are employees of Fulton County, and as such are covered by the pension laws of Fulton County (Ga. L. 1939, p. 572, as amended in 1943 by Ga. L. 1943, p. 994). It is also alleged that the treasurer is required by the terms of the act as amended to deduct from the petitioners' salaries contributions to the pension fund, which includes a special contribution to establish a pension in favor of the wives of the petitioners in the event of the death of the petitioners under conditions which would permit the payment of the pension as provided by the act as amended; and that the defendant refuses to accept contributions, which had been deducted from the salaries of the petitioners, on the ground that petitioners are not employees of the county in contemplation of the act of the legislature as amended, and on the further ground that the constitutional amendment authorizing Fulton County to levy taxes for pension purposes refers only to county employees and not to the widows of the employees. The amended petition sets out in detail how the contributions from the employees to the pension fund are to be paid to the treasurer from their salaries. It alleges that the Fulton County board of public welfare is organized pursuant to and derives its authority from the welfare-reorganization act of 1937, codified as Chapter 99-5 in Ga. Code Ann., and that, pursuant to the authority contained in § 99-508, the State Department of Public Welfare reimburses Fulton County department for 95 per cent. of the salaries expended in connection with the administration of the social-service program of the county, and with this exception all the funds available to the county board of public welfare or spent by it are derived from the county taxes levied for the support of paupers. The petition states that the defendant is by law the custodian of the county pension fund, and it is her duty to receive and disburse all funds established in the county for pensions to the county employees, and by section 20, which was added to the county-pension act by an act approved March 20, 1943 (Ga. L. 1943, p. 995), the petitioners as employees of the welfare department are authorized to elect to participate in the pension provided by the act for employees of the county; and that petitioners have made such an election, and have had deducted, by the county administrator and auditor of the public welfare department, from their salaries the sum of $128.39, which has been tendered to the defendant, accompanied by a list of the employees from whose salaries the deductions were made, together with a written election of each such employee to participate in the pension fund, which tender was declined by the defendant. The defendant's general demurrer to the petition as amended attacks the constitutionality of the Fulton County pension act, above referred to, in so far as it includes the employees of the Fulton County welfare department, and in so far as it provides for the payment of pensions to the widows of such employees. The defendant excepted pendente lite to the judgment overruling her demurrer to the amended petition; and upon a hearing, a stipulation of facts was entered into, agreeing that the allegations of facts in the amended petition were true except the allegation that the petitioners were employees of the county, it being agreed that this was a question of law for determination by the court. A judgment was rendered, granting the relief sought, to which the defendant excepts, and also assigns error on the exceptions pendente lite to the overruling of her demurrer.

DUCKWORTH, Justice.

On March 24, 1939, the General Assembly proposed an amendment to article 7, section 6, paragraph 2 of the constitution of Georgia, which was ratified at a subsequent general election held on June 6, 1939. The amendment provides: "The General Assembly shall have authority, however, to enact laws authorizing the County of Fulton and the governing authorities of the schools of said county, to create a retirement and pension fund and a system of retirement pay for county employees, and for county school employees, and to levy taxes for that purpose; and to authorize the said county and the said county-school authorities to enact laws, rules and regulations for the qualifications of such employees for benefits from such fund." Ga. L. 1939, p. 39. It will be seen that this amendment provides for a retirement fund and pensions for "county employees" and for "county-school employees," and authorizes the levy of taxes for that purpose. The act approved March 20, 1943 (Ga. L. 1943, p. 995), amends the original Fulton County employees'-pension act of 1939. Section 11 of the amending act repeals section 20 and enacts a new section 20, and provides that employees of the welfare department who elect to do so may obtain the benefits of the act. It is under these provisions of the amendment that the petitioners assert their right to the benefits of the pension act. While section 5 of the amendment requires that contributions of 2 1/2 per cent. of their salaries be made by the county employees to the pension fund, section 8 of the original act requires the commissioners of roads and revenue of Fulton County to levy and collect taxes and appropriate the same to supplement the pension fund, in an amount "which shall be sufficient at all times to pay any and all pensions which may be granted under . . this act." Thus it is seen that public funds procured by levying and collecting taxes are inseparably mingled with the contributions made by the employees, and hence the constitutional right to pay the benefits under the pension law must be tested by the right of the county to expend public funds for those purposes, despite the contributions made by the employees. The constitutional amendment upon which the law depends specifies county employees and county-school employees as the classes of employees entitled to the benefits of the retirement fund and pensions in the county. Section 11 of the 1943 amendment adds another class, to wit, employees of the county welfare department. Notwithstanding the contributions made by the employees and the elective feature of the law, this additional class is entitled to participate only if it is embraced within the constitutional amendment. The decisive question here presented is whether or not the employees of Fulton County welfare department come within the term "county employees" found in the constitutional amendment. Of course, as pointed out by counsel for the defendant in error, the General Assembly obviously thought that this class was included, since by the amendment it is authorized to participate, but it does not necessarily follow that, when properly construed, the constitution would authorize the inclusion of this class, and if not, then the portion of the amended act which includes it must yield to the constitution and is void.

The Public Welfare Department of the State was created by an act approved February 26, 1937 (Ga. L. 1937, p. 355). It abolished the Board of Welfare created in 1919 (Ga. L. 1919, p. 222), and the Board of Control of Eleemosynary Institutions, transferring the functions of these boards to the Public Welfare Department. It declares that the State Department of Public Welfare is an institution of the State, and provides for the organization of the county departments with county boards, county directors, and county staffs, and for State, county and United States Government contributions or appropriations. Section 2 of the act empowers and authorizes the State Department of Public Welfare "to administer, expend, and disburse funds appropriated to it . . by the General Assembly of Georgia and by the respective counties of said State and by the United States Government through its appropriate agencies and instrumentalities for the purpose of distributing old-age assistance and all other benefits provides for in this act." It should be noted here that section 2 provides for the expenditure of all funds available under the act by the State department through its agencies and instrumentalities. The act also empowers the State department to prescribe the qualifications and salaries for all employees under the act. Section 6 in part declares that "the State department shall be charged with the administration or supervision of all county-welfare departments of the State" and that it shall "provide services to county governments including the organization and supervision of county-welfare departments for the effective administration of welfare functions, and the compilation of statistics and necessary information relative to public-welfare problems throughout the State." Here we have specific provisions of law which impose the responsibility for the administration of the welfare act, not upon the county-welfare department, but upon the State department, declaring that the State department, but upon the State department, declaring that the State department may use the county department as an instrumentality through which to administer the act within the area embraced within the separate counties. Paragraph 10 of section 6 makes the county departments mere agents of the State department and empowers the State department by rules and regulations to designate the county departments "to serve as agents in the performance of all State welfare activities of the county." As amended in 1941 (Ga. L. 1941, p. 485), the Governor is expressly authorized to suspend and, after a hearing, to remove for good cause existing any member of any county board or any county director of public welfare. We have gone thus into detail into the legislative scheme in the above welfare act as amended because it seems clear that the acts furnish an answer to the question now under consideration as to whether or not the employees of the Fulton County welfare department are Fulton County employees in the terms of the constitution, art. 7, sec. 6, par. 2, as amended. It will have been seen that the law charges the State department with full responsibility for the administration of all the terms of the act of 1937, supra, creating the Public Welfare Department, and provides merely that in the performance of this responsibility the State may employ the county departments as agencies of the State department. While the county-department employees render services in the administration of the law within the limits of Fulton County, such services are none the less services to the State. The constitutional amendment here involved recognizes that county-school employees are not properly included in the term "county employees" as there used, since it expressly mentions both. This question has not heretofore been decided by this court. In construing a pension act applicable to Richmond County employees, this court, in Drost v. Robinson, 194 Ga. 703 ( 22 S.E.2d 475), held that a deputy sheriff was not a county employee under that act. That opinion is authority to the effect that one must qualify as a county employee in order to be entitled to the provisions of the pension fund created for the benefit of employees of the county. In Maskule v. State, 3 Wn.2d 121 ( 99 P.2d 929), the Supreme Court of the State of Washington had for decision the question whether or not county employees of the county-welfare department under the act creating the State Department of Social Security were State employees under a State law requiring that State employees employed on a full-time basis for not less than six months should receive compensation of not less than $100 per month. Under the State social-security act, the board of county commissioners served as a board for all matters involving public assistance in their respective counties, and constituted the agency in each county through which all categories of public assistance should be administered. The board of county commissioners were empowered to employ an administrator, the administrator to hold office at the pleasure of the board, and it was held that all employees under the county board were State employees. A contrary ruling was made by the Supreme Court of Colorado, in In re Employees in County Welfare Department, 106 Colo. 475 ( 106 P.2d 464), the decision there being in response to a question propounded by the governor as to whether or not employees in the county department of public welfare were State employees in contemplation of the classified civil-service law of that State. The opinion was not unanimous.

There are certain features connected with the employment of the employees of Fulton County welfare department that indicate that they are employees of the county. The county board is selected by the county commissioners, and all other employees of the department are selected by the county board. The county appropriates money with which to pay the salaries, and the county department administers all county pauper relief. But, on the other hand, standards for qualification and salaries of the employees of the county department are fixed by the State department, and the county director is employed with the consent of the State department. The State department reimburses the county for 95 per cent. of the funds appropriated by it for the payment of expenses and grants. Thus, it might be said that the employees of the county department are neither county nor State employees, but are employees of both the State and the county departments. In that event, however, they would not qualify under the constitutional amendment for participation in the Fulton County pension law, for they would not be county employees. It follows that the provision of the act approved March 3, 1939 (Ga. L. 1939, p. 571), as amended by the 1943 act, which authorizes pensions to employees of the department of public welfare of Fulton County offends art. 7, sec. 6, par. 2 (Code, § 2-5402) of the constitution, and the court erred in overruling the demurrer raising this question. The subsequent proceedings and judgment were nugatory.

Judgment reversed. All the Justices concur.