Brassell v. Brandon

• Decision Date: 25 June 1931
• Docket Number: 3 Div. 963.
• Citation: 223 Ala. 324,135 So. 577
• Parties: BRASSELL v. BRANDON, STATE AUDITOR.
• Court: Alabama Supreme Court

135 So. 577

223 Ala. 324

BRASSELL v. BRANDON, STATE AUDITOR.

3 Div. 963.

Supreme Court of Alabama

June 25, 1931

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Petition of L. H. Brassell for mandamus to John Brandon, as State Auditor. From a judgment denying the writ, petitioner appeals.

Affirmed.

Brassell & Brassell, of Montgomery, for appellant.

Thos E. Knight, Jr., Atty. Gen., and A. A. Evans, Asst. Atty Gen., for appellee.

THOMAS J.

The question is raised by demurrer to the answer-the facts and denials thereof. The trial court overruled the demurrers of petitioner thereto, and the latter took issue upon such denials of the answer that did not admit the allegations of the petition.

Were the allegations of fact contained in the answer proved by the testimony of the petitioner, L. H. Brassell, and by the exhibits introduced in evidence and admitted by him in his testimony to be correct, sufficient to deny relief?

The petition alleged, in substance, that petitioner, on the 18th day of April, 1927, was appointed an associate member of the state tax commission by the Governor, Hon. Bibb Graves; that he duly qualified and entered upon the discharge of the duties of that office, and continued to discharge its duties to and including the 20th of January, 1931; that petitioner did not receive a warrant from the state auditor, on the state treasury, for salary for the months of May, June, July and to the 15th day of August, 1930, amounting in the aggregate to $1,166; that due demand on the auditor for such warrant was made and there was failure and refusal to issue.

The answer admits petitioner's due appointment, that he qualified as alleged, and had not been paid salary for the time named; denied that petitioner discharged all duties of said office from May 1, 1930, to August 15, 1930, the period for which petitioner was not paid by the state or its officials. The answer further alleges that on, to wit, April 24, 1930, petitioner addressed a letter to the Governor in words as follows:

"April 24th, 1930.

"Hon. Bibb Graves, Governor.

"Dear Governor:

"As you know, I am a candidate for the office of Attorney General and I desire to ask of your Excellency a leave of absence from May 1st to August 15th, 1930. Trusting your Excellency will grant this request, I beg to remain,

"L. H. Brassell, Associate Commissioner."

That to this letter the Governor replied in words as follows:

"April 30th, 1930.

"Hon. L. H. Brassell,

"Associate Commissioner,

"The State Tax Commission,

"Capitol.

"Dear Sir:

"I have yours of the 24th advising me of your candidacy for the office of Attorney General and asking for leave of absence without pay pending the campaign. I heartily approve your action and assure you that your request is granted and that when the campaign is over, irrespective of the outcome, you will be gladly welcomed back to the position which you have filled with credit to yourself and benefit to the State.

"Sincerely,

Bibb Graves, Governor."

The answer alleges that petitioner accepted and acted upon the provisions of said reply; that defendant is advised by the present Attorney General of Alabama that the legal effect of said letter by petitioner, and the letter of reply thereto by the Governor, when accepted and acted upon by petitioner, operated as a removal from office for the time indicated by said Governor, or as an abandonment by petitioner of the office of associate member of the state tax commission, during said period.

The answer further alleges that due to this understanding between the Governor and petitioner, no salary was requested by petitioner for the period, to wit, from May 1st to August 15th, of the state auditor, until the latter part of the term of office of the Governor; that in accordance with the provisions of the said letter of the Governor on, to wit, August 15, 1930, the Governor did "gladly welcome back to the position of Associate Member of the State Tax Commission" the petitioner, and that, thereafter, petitioner, as associate member of the state tax commission, and during the remainder of the term of the said Governor, was regularly paid the salary provided by law for an associate member of the state tax commission.

The question then recurs: Was said L. H. Brassell, the petitioner, an associate member of the state tax commission from May 1, 1930, to August 15, 1930, or did his action by and with the consent of the Governor amount to a temporary removal from office, or a failure to discharge the duties of that office as required by law, though he discharged some duties thereof? The witness stated as to this:

"During this period of time I was called back to appear as a member of the State Tax Commission in Birmingham wherein the Hill Gro. Co. was before that commission on the question as to an inspection of their books. Before I left on this leave of absence I stated to the chairman and associate members that any time they needed me to call me; that I would not suffer the State's business to lag, the important matters; that is, hearings, and so forth. I think it was-I am not sure about this, as to the dates. I think it was about the last of May, sometime in the month of May, I happened to be in Troy and Mr. Moore-Mr. Frontis Moore, who was an associate member of the State Tax Commission-called me for the Commission and suggested that I appear in Birmingham the following week. I don't remember what week that was. I was ordered. However, some days elapsed between that time and the time I was to appear in Birmingham and I went down in Geneva and Houston Counties. I remember that distinctly-and the day previous to the time that I was to report to Birmingham I drove my car, from either one of these places. I don't remember where it was; my recollection is that it was old Columbia, in Houston County-I drove home, spent that night at home, and then came in here (Montgomery) and spent the night here, caught the bus out early the following morning and went to Birmingham in obedience to the orders that I had received and when I came back to Montgomery, filed my expense account, with the secretary of the State Tax Commission, which was duly forwarded and paid by the State. There was not a time when I was in Montgomery, passing through, but what I would go to the Tax Commission, some member, or probably two or three at a time, and suggest to them that any time they needed any hearing, to let me know, and I would be present. So I went there in the discharge of that duty. It was in the month of May. [...