Doyal v. Russell

• Decision Date: 14 November 1936
• Docket Number: No. 11383.,11383.
• Citation: 183 Ga. 518,189 S.E. 32
• Parties: DOYAL et al. v. RUSSELL.
• Court: Georgia Supreme Court

183 Ga. 518

189 S.E. 32

DOYAL et al.

v.RUSSELL.

No. 11383.

Supreme Court of Georgia.

Nov. 14, 1936.

Syllabus by the Court.

1. So far as the petition alleged an attempt on the part of the Governor of this State in connection with the other officers of the executive department to operate the affairs of the State without an appropriation act, it is apparent that the only purpose of the plaintiff was to question collaterally the claim of one of the defendants to the office of State Treasurer. The allegations of fact show that such defendant is at least a de facto officer (this defendant has been adjudicated to be de jure State Treasurer), and in this respect the petition did not show any proper basis for the grant of equitable relief; the plaintiff as a taxpayer having no right either in law or in equity to make a collateral attack upon the claim or title of such incumbent in the office of State Treasurer.

2. Where both general and special allegations are made regarding the same subject-matter, the latter will control.

3. Where pleadings are ambiguous or couched in alternative expressions, on demurrer they will be given that construction which is most unfavorable to the pleader.

4. Accordingly, where two matters are pleaded in the disjunctive, one of which is good and the other not, the petition is to be treated as pleading no more than the latter, under the rule that the pleadings must be construed most strongly against the pleader.

5. So, where any one of several averments alleged in the alternative is insufficient to state a cause of action, the entire pleading is bad and subject to general demurrer.

6. Except as stated in the first headnote, the plaintiff's action is based solely upon the theory that the acting State Treasurer is di verting the gasoline and kerosene tax funds to purposes foreign to those whereunto such funds were assigned and dedicated by law, and that the other defendants are co-operating with him in so doing. The petition first alleged a diversion of State funds in general though unqualified terms; but later it declared by alternatives that the defendant will divert and pay out the funds under a mentioned proclamation of the Governor, or otherwise. Under the above rules of construction, the petition can be construed as alleging no more than that the defendant named as the acting State Treasurer will divert the gasoline and kerosene tax fund under the proclamation of the Governor or otherwise; and since it does not appear that the proclamation itself contemplated a diversion, the petition failed to state a cause of action for the illegal diversion of State funds, and as to this phase was subject to general demurrer.

7. The allegations with respect to the other defendants were even less substantial.

8. The court erred in overruling the motions to dismiss the petition, and in overruling the general demurrers.

BELL, J., dissenting.

Error from Superior Court, Floyd County; C. H. Porter, Judge.

Suit by J. W. Russell against P. H. Doyal and others. To review an adverse judgment, defendants bring error.

Reversed.

J. W. Russell filed a suit for injunction against Paul Doyal, a resident of Floyd county, and J. B. Daniel, a resident of Troup county. The plaintiff offered three amendments to his petition, all of which were allowed by the court. By two of these amendments new parties defendant were added, as follows: By the first amendment Eugene Matheson, of Hart county, and G. B. Carreker, of______ county; by the second amendment, Arthur L. Crowe, Cobb county. Daniel filed a motion to dismiss the petition as to him, on the ground that it appeared from the allegations that the superior court of Floyd county had no jurisdiction to entertain the suit as against him, for the reason that he was a nonresident of that county. It was contended in this motion that the plaintiff failed "to assert any right of the plaintiff as against the said Doyal and this defendant jointly." Daniel also filed a generaland special demurrer, urging that the petition failed to set forth any cause of action against him, and that it contained a misjoinder of parties and of causes of action, and was multifarious. Similar motions to dismiss were filed by Carreker and by Crowe; and finally the defendants Doyal, Carreker, and Crowe filed a demurrer upon substantially the same grounds as those asserted in the general and special demurrers of Daniel. The court overruled all of these motions and demurrers, and the defendants excepted.

The petition, formal parts omitted, was as follows:

"1. That your petitioner is a citizen and taxpayer of Floyd County, Georgia, and that he is an automobile owner and user of gasoline, and pays a portion of the motor-fuel tax levied by the State of Georgia under the acts of the General Assembly of 1927 and 1929 (Code, § 92-1401 et seq.).

"2. That this suit is brought against Paul Doyal, a resident of Floyd County, Georgia, and J. B. Daniel, a resident of Troup County, Georgia, both of the defendants now sojourning temporarily in Fulton County, Georgia.

"3. That one of the defendants, Paul Doyal, occupies the office of Chairman of the State Revenue Commission of Georgia, and that the other of the defendants claims to occupy the office of treasurer of the State of Georgia.

"4. That on or about the 24th day of February, 1936, the Governor of Georgia, the Honorable Eugene Talmadge, attempted to remove from office George B. Hamilton, the duly elected and qualified treasurer of the State of Georgia, and attempted to appoint in his stead the Honorable J. B. Daniel, one of the defendants herein, and the said J. B. Daniel is attempting to discharge the duties of the office of the treasurer of the State of Georgia under the said attempted appointment.

"5. Petitioner shows that on or about the 23rd day of February, 1936, the Governor of Georgia, the Honorable Eugene Talmadge, attempted to remove from office William B. Harrison, the comptroller-general of the State of Georgia, and appointed to serve in his stead the Honorable G. B. Carreker, and that the said G. B. Carreker is attempting to discharge the duties of the office of comptroller-general of the State of Georgia under the said attempted appointment.

"6. Petitioner shows that this suit is brought, not against the State of Georgia, and is brought not against the defendants in their official capacities, but is brought against them individually, because they are acting without the law and in violation of the laws and the constitution of the State of Georgia, and are seeking to pay out illegally funds belonging to the State of Georgia that should be paid out in the proper manner and upon an appropriation act as provided by the constitution. And petitioner alleges that the two said defendants are acting illegally and beyond the power of duties of their offices in seeking to divert the motor-fuel taxes hereinafter set out.

"7. Petitioner shows that the statute hereinbefore referred to provided that the distributors of motor fuels and kerosene, doing business in the State of Georgia, shall collect the motor-fuel and kerosene tax levied and pay the same to the comptroller-general of the State of Georgia by the 20th of the month next succeeding the month for which the tax has been collected.

"Petitioner shows, that, because of the uncertainty as to the legal occupant of the office of the comptroller-general, the said oil distributors have failed and refused to pay the gasoline tax so collected for the month of February, 1936.

"8. Petitioner shows that one of the defendants, Paul H. Doyal, has caused fi. fas. to be issued and has threatened to levy the same upon certain property of the said oil distributors of the State, in spite of the fact that the law requires the comptroller-general to collect the said tax.

"9. Petitioner shows that he is informed said oil distributors will pay the motor-fuel and kerosene tax, collected for the month of February under the said fi. fas. into the custody and control of the said defendant Paul H. Doyal, if the same has not already been paid to the said Paul H. Doyal, although the comptroller-general of the State is the official designated by law to receive and collect the same.

"10. Petitioner shows that the legislature for the year 1935 failed to pass what is known as a general appropriation act, and thereby failed to provide how funds collected by the State of Georgia shall be expended for the year 1936.

"11. Petitioner further shows that his Excellency, Eugene Talmadge, Governor of the State of Georgia, seeking to pay out the proceeds of tax collections andother State revenues without the general appropriation act, did issue, upon the 17th day of February, a proclamation seeking to provide for the payment of public revenues and funds of the State arising from taxation and other sources, without an act of the General Assembly as provided by the Constitution of the State of Georgia (article 3, § 7, par. 11).

"12. Petitioner shows that the motor-fuel tax has been allocated by the General Assembly of Georgia (Act approved August 19, 1929, Ga.Laws 1929, p. 99 [Code 1933, § 92-1402]), four cents per gallon for the construction of State-aid roads, one cent to the several counties of this State, and one cent to an educational equalization fund. Petitioner shows, however, that the funds derived from the gasoline tax is being diverted by one of the defendants, J. B. Daniel, to other purposes and in violation of the express statutes allocating said funds to the purposes hereinbefore set forth, and that the said J. B. Daniel and Paul Doyal are co-operating to the same illegal end.

"13. Petitioner shows that the defendant Paul H. Doyal, unless he is restrained by this court, will pay the said funds to the said J. B. Daniel, who petitioner alleges has been illegally appointed and has no right or authority under the law to receive the said funds arising from the gasoline tax, and who is illegally disbursing the same. And petitioner alleges that...