Crow v. McCallum
| Decision Date | 11 February 1960 |
| Docket Number | No. 20726,20726 |
| Citation | 113 S.E.2d 203,215 Ga. 692 |
| Parties | Ben W, CROW, Mayor, et al. v. L. B. McCALLUM et al., Commissioners. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The judgment of the court below sustaining the demurrers to certain paragraphs of the answer was not erroneous for any reason assigned.
2. The motion for new trial, not having been argued in this court, will be considered abandoned.
This is a suit for mandamus by certain named persons who, under the allegations of the petition, constitute the Board of Commissioners of the Peace Officers' Annuity and Benefit Fund of Georgia, against certain named individuals who are alleged to be officials of the City of Cornelia, Georgia, seeking to require the named individuals to pay over to the said Fund amounts due out of the fines and forfeitures collected in said city during the years 1953-1958. To this petition, the defendants filed their plea and answer, in which they raised numerous defenses as will appear in the body of this opinion. The petitioners filed demurrers to every paragraph of the answer except those which simply admitted or denied certain allegations of the petition. All of these demurrers were sustained.
The case was then submitted on a stipulation of facts and the pleadings to the judge without the intervention of a jury for decision of all questions of law and fact. Thereafter, a judgment was entered for the petitioners, requiring the defendants to to all acts necessary to pay over the sums due to the Peace Officers' Annuity and Benefit Fund. A motion for new trial on the general grounds was made and denied. The exception here is to this judgment and to the judgment sustaining the demurrers to the various paragraphs of the answer.
Herbert B. Kimzey, Kimzey & Kimzey, Cornelia, for plaintiff in error.
Ernest McDonald, Adams & McDonald, Dalton, Cravey & Pentecost, Atlanta, for defendant in error.
1. Since a number of the demurrers in this case present similar questions, these questions will be considered together, but not necessarily in the order in which they appear in the record. In paragraphs 51, 52, 53, 54, 55, 56, and 57, it was contended that mandamus should be denied for the various years therein set out because certain named persons were not made parties to the suit. The persons named were alleged to be predecessors in office to the officials named in the petition and were alleged to have held such offices during the years named in the plea. Demurrers to these paragraphs were sustained. There was no error in these rulings. Persons holding public office may be required by mandamus to perform a continuing duty which their predecessors in office either refused or failed to do. Weathers v. Easterling, 153 Ga. 601, 113 S.E. 152; Citizens' Bank of Folkston, Mahunta Branch v. Newton, 180 Ga. 860, 181 S.E. 171.
The persons named in these paragraphs were, therefore, not necessary parties to this action, since the present officials may be required to do all the acts necessary to pay over the funds due the Peace Officers' Annuity and Benefit Fund of Georgia. It follows, the demurrers to these paragraphs were properly sustained.
2. Paragraph 58 of the answer contends that mandamus should be denied because the City of Cornelia was not made a party to this proceeding. There is no merit in this contention. In McCallum v. Bryan, 213 Ga. 669, 100 S.E.2d 916, 918, this court said:
3. Paragraph 23 of the defendants answer was a general denial of paragraph 23 of the petition, in which the defendants were notified to produce certain books and records at the trial. The plaintiffs demurred to this paragraph on the ground that it was evasive and it was not alleged what documents defendants did not have and could not produce at the trial. The demurrer was sustained. There is no merit in the exception to this ruling. This paragraph of the answer is evasive, uncertain, and incomplete. It is impossible to tell whether the defendants intend to deny the right of the petitioners to compel the production of the documents, whether to deny the existence of the documents, or whether to deny that notice was given, or whether the denial has reference to some other matter. It was therefore not error to sustain this ground of the demurrer. Code § 81-308.
4. Demurrers to paragraphs 24 and 25 of the answer in which it was alleged that no policeman of the City of Cornelia now belongs or had ever belonged to the Peace Officers' Annuity and Benefit Fund of Georgia and that such officers were now covered by the provisions of the Social Security Law of the United States, 42 U.S.C.A. § 301 et seq., were sustained. There is no merit in the exception to this ruling. Whether or not any policeman of the City of Cornelia is or ever has been a member of the Fund represented by the plaintiffs is completely immaterial and irrelevant on the question of whether the allocated funds should be paid over to the Peace Officers' Annuity and Benefit Fund, and could not possibly constitute a defense to this suit to require such funds to be paid over in accordance with the law. There was no error in this ruling.
5. Paragraphs 26, 27, 28, 29, 40, 43, 44 and 45 of the answer, to which demurrers were sustained, attempt to attack as unconstitutional, by violating stated provisions of the Constitution of Georgia the Peace Officers' Annuity and Benefit Fund Act, Ga.L.1950, p. 50 et seq., together with numerous acts amendatory thereto, Code § 78-901 et seq. for various stated reasons. These attempts to attack all of these acts in their entirety are completely insufficient to draw into question the constitutionality of any act. 'A criticism that 'sections 885-900 inclusive of the Criminal Code' of this State are violative of Art. 6, § 4, par. 7, of the Constitution of Georgia, 'in that it confers upon the superior court the right to render judgment in cases' thereunder 'without the intervention of a jury', is too general to raise a question as to the constitutionality of any particular section of the Code; it appearing that many of the various sections included in the criticism have no reference to the subject of trial without a jury.' Rooks v. Tindall, 138 Ga. 863, 76 S.E. 378. Likewise, in the instant case, the act of 1950, supra, and the various amendatory acts contain much that has no reference to the...
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