Harmon v. James

• Decision Date: 10 May 1946
• Docket Number: 15467.
• Citation: 38 S.E.2d 401,200 Ga. 742
• Parties: HARMON v. JAMES et al.
• Court: Georgia Supreme Court

38 S.E.2d 401

200 Ga. 742

HARMON v. JAMES et al.

No. 15467.

Supreme Court of Georgia

May 10, 1946

Syllabus by the Court.

Mandamus lies against an officer to require the performance of a clear legal right. A petition for the writ against county commissioners, as the governing body of a county, to require them to accept and pass on an application for a permit to engage in the sale of domestic wines, foreign wines, and malt beverages, or any of them, but which fails to allege that the petitioner or any other person has presented, or desires to present, such an application, fails to state a cause of action and is properly dismissed on general demurrer for that reason.

Harmon brought mandamus against James, Brown, and Cooper as the three members comprising the board of roads and revenues of Taylor County, Georgia. His petition alleged: that he was a citizen, taxpayer, and patron of the public schools of that county, and as such was interested in the enforcement of law in his county; that wine, domestic and foreign, also beer could be legally sold in the county, but none was being sold within the corporate limits of any municipality of the county; that it was the duty of the county commissioners, as the governing body of the county, to receive applications for licenses to sell, at retail, wine, domestic and foreign, also beer, and within their discretion to either grant or refuse the same; and that the commissioners at their regular January 1, 1946, meeting passed a resolution that no applications thereafter for licenses to sell such beverages would be received and/or granted. He prayed for process and that the commissioners be required to accept and pass on all applications from those who might propose to carry on the business of selling at retail the beverages mentioned in his petition or any of them.

After a mandamus nisi issued, but before final hearing, seven other persons alleging themselves also to be citizens and taxpayers of Taylor county presented their petition for intervention and alleged: that they were interested in the subject matter of the suit and in the enforcement of law, and prayed that they be allowed to intervene and be made parties to the cause. Over the objection that these petitioners were not proper parties to a mandamus proceeding, the court granted an order allowing the intervention and made the intervenors parties. The intervenors then demurred generally to the petition on the ground that it stated no cause of action and on three grounds of special demurrer. The commissioners also demurred generally to the petition by adopting the ground of general demurrer made by the intervenors. All of the demurrers appeared on the same sheet of paper. The commissioners also filed a joint answer, to which the plaintiff demurred.

After a hearing on the demurrers, the court overruled the demurrer to the answer, sustained the demurrers to the petition, and dismissed the suit. The petitioner excepted to the order allowing the intervention, to the order overruling his demurrer to the answer, and to the order sustaining the demurrers, to his petition.

R S. Foy and C. W. Foy, both of Butler, for plaintiff in error.

C C. Pittman, of Cartersville, and Jared J. Bull, of Oglethorpe, for defendants in error.

CANDLER Justice (after stating the foregoing facts).

1. Nowhere in the petition is it alleged that the petitioner or any other person has filed or desires to file, any application for a permit to engage in the retail sale of any of the beverages mentioned in the petition. So far as the record here discloses, such application may never be filed. 'Mandamus will not be granted when it is manifest that the writ would, for any cause, be nugatory...