Armtstead v. Macneill, 16025.

• Decision Date: 02 December 1947
• Docket Number: No. 16025.,16025.
• Citation: 45 S.E.2d 652
• Parties: ARMTSTEAD. v. MacNEILL, Treasurer.
• Court: Georgia Supreme Court

45 S.E.2d 652

ARMTSTEAD.

v.MacNEILL, Treasurer.

No. 16025.

Supreme Court of Georgia.

Dec. 2, 1947.

Syllabus by the Court.

"In a suit for mandamus, the duty which the complainant seeks to have enforced must be a duty arising by law, either expressly or by necessary implication; and the law must not only authorize the act to be done, but must require its performance." Sibley v. Park, 175 Ga. 846, 166 S.E. 212; Johnson v. Arnold, 176 Ga. 910, 169 S.E. 505; Wood v. Puritan Chemical Co., 178 Ga. 229, 172 S.E. 557. A public officer cannot be required to pay out public moneys until those who demand its payment show a clear provision of law which entitles them to receive it. Freeney v. Geoghegan, 177 Ga. 142, 169 S.E. 882; Civil Service Board of Fulton County v. MacNeill, 201 Ga. 643, 40 S.E.2d 655. Measured by the rules stated, the petition did not state a cause of action and it was not error to sustain the general demurrer.

Error from Superior Court, Fulton County; Walter C. Hendrix, Judge.

Mandamus by John Armistead against Mabel Abbott MacNeill, treasurer, requiring defendant to pay plaintiff certain amount for services rendered. To review an adverse judgment, plaintiff brings error.

Affirmed.

J. C. Murphy, of Atlanta, for plaintiff in error.

Durwood T. Pye and W. S. Northcutt, both of Atlanta, for defendant in error.

HEAD, Justice.

In this case the plaintiff in error contends that he was employed as an agent by the board of tax assessors of Fulton County to seek out unreturned property and bring it to the attention of the board, under the provisions of the Code, § 92-6910; that he was to receive as compensation for his services ten per cent of the county and school taxes collected on such unreturned property. The tax assessors have certified that the plaintiff is due certain moneys and he contends that the language, "The commission allowed said agents shall be paid from the county treasury out of the amounts so placed on the books by the said agents and when collected by the county as a part of the expense of said board" (italics ours), of the Code section authorizing his employment, requires the defendant, as county treasurer, to pay him the amount so certified by the board of assessors.

Had the words "as a part of the expense of said board" been omitted from § 92-6910, there might have been some doubt as to the legislative intent regarding the method of payment to such agents as might be employed. But since agents are to be paid as a part of the expense of the board, the plaintiff's case must stand or fall on provisions made for the payment of expenses. If payment of "expenses" can be required of the treasurer without any action by the county board of commissioners, then the plaintiff presents a proper case for mandamus. If expenses of the board cannot be paid without action on the part of the commissioners, then the plaintiff's case is without merit, since it is undisputed that no action has been taken by the commissioners on the plaintiff's claims for compensation.

Chapter 92-69 of the Code provides that there shall be, in each of the several coun-ties of this State, a board of tax assessors, and for the appointment, commission, powers, and duties of such boards. Section 92-6903 requires the board of county commissioners, or a majority thereof, to appoint the board of tax assessors, and in those counties not having a board of commissioners, the appointment is to be made by the...