Irons v. Harrison

• Decision Date: 01 December 1937
• Docket Number: 11825.
• Citation: 194 S.E. 749,185 Ga. 244
• Parties: IRONS v. HARRISON, Comptroller General.
• Court: Georgia Supreme Court

194 S.E. 749

185 Ga. 244

IRONS v. HARRISON, Comptroller General.

No. 11825.

Supreme Court of Georgia

December 1, 1937

Rehearing Denied Dec. 14, 1937.

Error from Superior Court, Bulloch County; Wm. Woodrum, Judge.

Mandamus proceeding by Lewis A. Irons against Homer Parker Comptroller General of the State of Georgia, to compel the payment of $700 back salary as fixed by law due to the petitioner as salary for Deputy Insurance Commissioner of the State of Georgia. By amendment William B. Harrison, successor to Homer Parker, was named a party defendant. To review an adverse judgment, Lewis A. Irons brings error.

Reversed.

Syllabus by the Court.

1. The salary of the deputy insurance commissioner of the state of Georgia is fixed by law, and a continuing appropriation is made for the payment thereof. Code, §§ 56-102, 89-701. However, a legislative continuing appropriation does not operate as an appropriation during those years covered by a general appropriation act, unless such appropriation is embraced therein. Code, § 47-502.

2. An appropriation for the salary of deputy insurance commissioner was embraced in the lump-sum appropriation to the comptroller general's department, contained in the general appropriation acts of 1931 and 1933.

3. An appropriation for the salary of the deputy insurance commissioner, having been embraced in the general appropriation acts of 1931 and 1933, was merged into and became a part of the general appropriations for the periods covered by said acts, and under the terms of the act of 1933 it was subject to reduction or annulment in the ratio that the amount of any appropriation bore to the amount of the deficiency in revenue for each year covered by the act. No reduction or annulment was made of such appropriation for the years covered by the act of 1931. Therefore the deputy insurance commissioner was entitled to payment of the difference between the amounts actually paid on account of his salary and the amount appropriated for the respective years covered by the acts in question.

4. So far as here material, each of the appropriations made by the act of 1933 was 'reduced' or 'annulled' to the extent that the revenue for the respective years covered by the act was insufficient to pay the same; and therefore the amount of such reduction or annulment could not be resurrected and be made payable out of revenues coming to the State in years not covered by the act, in the absence of further legislative authority.

5. The comptroller general is not authorized to draw a warrant upon the state treasurer, nor is he authorized to countersign a warrant drawn by the Governor when the appropriation on which it is drawn has been exhausted. The fund in the treasury appropriated for the deputy insurance commissioner's salary having been paid to the comptroller general as the head of the department, the fund so appropriated was exhausted from the treasury and the comptroller general could not be compelled by mandamus to request the issuance of a warrant and to countersign the same. He could, however, be compelled to issue a voucher or check on his account in the bank in which such funds were kept; and the fact that such fund appropriated for the salary of the commissioner had been disbursed for other purposes, or that the funds then on hand, could not be legally used for such purpose is no defense thereto.

6. Under the facts of the instant case the deputy insurance commissioner did not waive the amount of his unpaid salary, nor is he estopped to claim payment of the same. Code, § 38-116; Tinsley v. Rice, 105 Ga. 285, 290, 31 S.E. 174; Freeney v. Pape, 185 Ga. ---- (5, 6), 194 S.E. 515; Best v. Maddox, 185 Ga. ---- (3, 4), 194 S.E. 578.

7. Nor is the petitioner barred by the doctrine of stale demands or laches. See Freeney v. Pape, and Best v. Maddox, supra.

8. The petitioner is not entitled to interest on his unpaid salary. Best v. Maddox, supra, and cit.

9. Under the above rulings and the evidence adduced on the hearing, the court erred in refusing to make the mandamus absolute to the extent of the unpaid salary for the years 1933 and 1935, and in not ordering the comptroller general to issue a voucher or check on his account for the payment thereof.

E. W. Maynard, of Macon, for plaintiff in error.

M. J. Yeomans, Atty. Gen., and Dave M. Parker, Asst. Atty. Gen., for defendant in error.

HUTCHESON Justice.

Lewis A. Irons brought a petition for mandamus against Homer Parker, comptroller general of the state of Georgia. The petition was sanctioned and ordered filed on November 10, 1936. As amended it contained substantially the following allegations: On January 1, 1933, petitioner was legally appointed deputy insurance commissioner of the state of Georgia, in the comptroller general's department; the comptroller general at that time being William B. Harrison. Petitioner's salary was fixed by law at $3,000 per annum. On April 1, 1933, the comptroller general, Harrison, reduced petitioner's salary 10 per cent., effective as of that date, and which reduction continued until July 31, 1935, at which time petitioner resigned his position as deputy insurance commissioner. He did not consent to the cut in his salary, and the cut was made over his protest. The comptroller general had no right to reduce the salary, and petitioner is entitled to mandamus to compel the payment of $700 back salary as fixed by law, together with interest thereon at 7 per cent. per annum. The defendant has funds on hand which can legally be used to pay said back salary, and, after demand, he refuses and fails to pay the same. The plaintiff prays that mandamus nisi issue, requiring the defendant to show cause why a mandamus absolute should not be issued, requiring him to pay petitioner said $700 with interest thereon, 'if he has funds which can be legally used for that purpose'; that if the defendant has no funds in his possession which can be legally used for that purpose, he be required to draw a warrant upon the treasurer, countersigned by himself, for the amount of said back salary with interest, or that he be required to request the Governor to issue a warrant for said amount, and be required to countersign the warrant as drawn by the Governor; that the defendant be required to do any and all other acts that may be necessary, etc. Demurrer and answer to the petition were filed. On a hearing before the court without a jury, substantially the following evidence was introduced: The petitioner testified as to his appointment and as to the cutting of his salary; that he protested to the comptroller general and the attorney general of the state; and that his salary as reduced was carried in the budget over his protest. Homer Parker testified that he was not in office at the time of petitioner's employment; that the records of his office show that petitioner was carried on the budget at 90 per cent. of his salary as fixed by statute; that the comptroller general's department in 1933 operated on 71 per cent. of the appropriation, in 1934 and 78 1/2 per cent. in 1935 on 92 1/2 per cent.; that in 1936, the Legislature having failed to pass an appropriation bill for that year, the department was operated pursuant to certain proclamations of the Governor, continuing in effect the appropriation act of 1933. The defendant further testified: 'I have enough money in the bank to my credit now [January 2, 1936] to run my department and pay this $700, and more than enough. I got plenty of money. There is no question about not having the money; the only question is for what purpose the money can be used. I have paid the salaries of every employee of the department for the year 1936, and they are paid up to date. I have a deputy insurance commissioner now, and he is drawing $3000 per year. * * * I go out of office on the 13th, to be succeeded by Mr. Harrison. I think I have about $25,000 that I am going to turn over to Mr. Harrison when I go out of office this month. * * * This balance that I have in there I am going to use to operate my office until 40 per cent. of January has passed, and I am going out of office leaving no obligation for 1937 whatever.' The balance above referred to was a balance from moneys paid to the comptroller general's department pursuant to the Governor's proclamation which was introduced in evidence. The court denied a mandamus absolute and the petitioner excepted. By amendment William B. Harrison, successor to Homer Parker, was made a party defendant.

1. The first question presented for determination is whether the petitioner, as a matter of law, is entitled to the unpaid salary to which he lays claim. The insurance department of the state of Georgia is a department in the office of the comptroller general, who as to that particular department is styled 'insurance commissioner,' and as such he may appoint a deputy insurance commissioner. Code, § 56-101. 'The deputy insurance commissioner, who shall be a man of actuarial experience, shall be paid out of the State treasury as is now provided by law for the payment of salaries of all Statehouse officers, a salary of $3,000 per annum.' Section 56-102, Ga.Laws 1912, pp. 119, 128; 1919, p. 283; 1931, pp. 7, 31. The Code, § 89-701, Ga.Laws 1865-66, pp. 11 12, declares: 'The various sums of the annual salaries of all the officers of this State, whose salaries are fixed by law, are hereby appropriated annually to pay said officers until said salaries are changed by law.' Construing these two sections together, it appears that the Legislature appropriated annually $3,000 to pay the salary of the deputy insurance commissioner. Such an appropriation constituted what is commonly termed a 'continuing' or 'permanent' appropriation. While ordinarily a continuing or permanent...