Raley v. Mayor of Warrenton

Cobb, J. (After stating the foregoing facts.) 1. The charter of the Town of Warrenton provides that the municipal authorities may from time to time elect a marshal, who shall remain in office twelve months, unless removed. Acts 1859, p. 212, sec. v. One regularly elected to the charter office of marshal of the Town of Warrenton can not, during the term for which he was elected, be legally discharged from that office, unless removed in the manner prescribed by law. See, in this connection, Shaw v. Mayor and Council of Macon, 21 Ga. 280. If, however, the municipal authorities of the Town of Warrenton create an office which the charter does not provide for, and elect one to the office thus created, they may, at their pleasure, abolish the office, and thus discharge the municipality from liability to the officer, notwithstanding his .term as prescribed by the ordinance creating the office has not expired. City Council of Augusta v. Sweeney, 44 Ga. 463. The proceedings of the municipal authorities, shown in the ex368 Mbits to the petition, can be construed in two ways; that is, creating two offices of marshal, or recognizing the' charter office of marshal and creating in addition thereto the new office of night marshal., If they be construed as providing for two officers, each having the powers and duties of a marshal, then the action was either void, as beyond the charter authority of the defendants, or neither office thus provided for was the charter office of marshal. The charter provided- for only one marshal, and' recognized no such office as night marshal; and therefore, if the action of the defendants be construed as referring to such an office, the position to which Raley was elected was a creation of the defendants. Under either view, Raley was never elected to a charter office; and when the office to which he was elected w‘as abolished, his right to tender his services and demand compensation was at an end. But it is said that the petition as originally framed was not to recover salary due an officer, but was .to recover an amount due under a contract of employment between the town authorities and Raley. The petition is not capable of this construction. The'words “employment” and “employ” may have been in the petition, but the words “ office ” and “ officer ” are more prominent in the allegations, and the averments as a whole leave no other impression than that it was the purpose of the pleader to treat the position which Raley occupied as that of an officer, rather than that of an employee under contract. Giving the petition the construction indicated, it set forth no cause of action. The purpose of the amendment being to recover under a contract of employment, if it set forth any cause of action at all, it was one entirely new and distinct from that attempted to be alleged in the original petition. It may be that the municipal authorities could make a binding contract, for a specified time, with an individual for the performance of services of the character indicated in the petition. See Alexander v. Americus, 61 Ga. 36. But upon this question we do not now pass. 2. The signature of the affiant is necessary to the validity of an affidavit in this State. Hathaway v. Smith, 117 Ga. 946, and eit.; Beach v. Averett, 106 Ga. 74. The pauper affidavit, if an affidavit at all, is therefore the affidavit of M. N. Raley. The question therefore is, does it appear sufficiently from tíre face of the affidavit that the affiant is the plaintiff in error ? The 369 plaintiff in error is Mrs. Joseph Raley, and the jurat of the officer who administered the oath is, in effect, a certificate that Mrs. Joseph Raley appeared before him and subscribed this affidavit; and the affiant, M. N. Raley, is thus identified as the person who is referred to in the body of the affidavit as Mrs. Joseph Raley. See, in this connection, Loeb v. Smith, 78 Ga. 504. The affidavit was sufficient to relieve the plaintiff in error from the payment of costs. Judgment affirmed. AU the Justices concur.