Mattox v. Bd. Of Educ. Of Liberty County

• Decision Date: 16 November 1918
• Docket Number: (No. 1022.)
• Citation: 97 S.E. 532,148 Ga. 577
• Parties: MATTOX. v. BOARD OF EDUCATION OF LIBERTY COUNTY.
• Court: Georgia Supreme Court

148 Ga. 577

97 S.E. 532

MATTOX.

v.BOARD OF EDUCATION OF LIBERTY COUNTY.

(No. 1022.)

Supreme Court of Georgia.

Nov. 16, 1918.

(Syllabus by the Court.)

Atkinson, J., dissenting in part.

Certified Questions from Court of Appeals.

Suit by J. H. Mattox against the Board of Education of Liberty County. General demurrer to petition sustained and petition dismissed, and plaintiff excepts and brings error, and Court of Appeals certified questions. Questions answered.

See, also, 141 Ga. 649, 81 S. E. 861; 146 Ga. 629, 92 S. E. 202.

The Court of Appeals requested instructions from the Supreme Court upon the following questions:

"J. H. Mattox was, on the first Wednesday in October, 1910, regularly elected superintendent of education of Liberty county for the term of four years beginning May 7, 1912; and, after his election had been declared by the proper authorities, his commission of office was duly forwarded by the Governor to the ordinary of Liberty county, with direction that it be delivered to Mattox upon presentation by him of a proper bond approved by the board of education of that county and his taking the oath of office. By act of the General Assembly, passed in 1912 (Acts 1912, p. 162), the term of office for which he had been elected was extended to January 1, 1917. Prior to the commencement of the term for which he had been elected, he executed and presented to the board of education a bond conditioned upon the faithful performance of his duty under the law, the amount and sufficiency of which has not been questioned. The board of education refused to approve the bond, basing the refusal upon alleged misconduct of the plaintiff before his election to office, and his qualifications in respect to previous citizenship in the county for a certain period. The plaintiff applied for the writ of mandamus to compel the board to approve his official bond, and, in response to the rule nisi issued upon the petition, the board filed a demurrer and an answer. The demurrer was sustnined, and this was reversed by the Supreme Court. Mattox v. Jones, 141 Ga. 649, 81 S. E. 861. The case was then tried and a verdict returned in favor of the plaintiff, and on exceptions by the board to the overruling of its motion for a new trial the judgment was affirmed by the Supreme Court. See Jones v. Mattox. 146 Ga. 629. 92 S. E. 202. Before the last decision of the Supreme Court, the plaintiff fded the present suit against the. board of education in their official capacity, for a part of the salary which he claimed was due him as county superintendent of education, and later, by amendment, after his term of office had expired, sued for the amount of the fixed salary for the entire term of four years and eight months; it being alleged in the petition that the defendant had illegally elected another person to fill the office, and had illegally been paying to that person the plaintiffs salary since the 1st of May, 1912. The defendant filed a general demurrer, on the ground that 'said petition is not sufficient in law.' The court sustained the demurrer and dismissed the petition, and to that ruling the plaintiff excepts. It is contended by counsel for the defendant in error that the court properly sustnined the demurrer, because 'there is no authority of law for suing the county board of education of Liberty county, Ga., ' and 'the petitioner shows that the salary has been paid to a de facto officer; and, when so paid, the de jure officer cannot maintain an action for the same against the county authorities.'

"(1) Would the rule as stated in Morel v. Sylvania & Girard R. Co.. 134 Ga. 687. 68 S. E. 588, that 'a de jure officer cannot recover from the government, or its subordinate corporations, the amount of salary paid to a do facto officer while the latter occupied the office and discharged its duties, although he was subsequently ousted at the instance of the de jure officer, ' have application in the present case, where the issue as raised was not between the two officials themselves, but where the contest was entirely between the de jure officer and the governing authority, and where the alleged officer de facto came into office solely by the illegal act of the governing authority itself?

"(2) If the rule indicated does not preclude a recovery by the plaintiff as against the governing authority, does the fact that the claim docs not arise out of any contractual relation between the parties (and thus might be distinguished from suits such as have been recognized in the case of Board of Education v. Palmer, 134 Ga. 662, 68 S. E. 583), but is intended to compel the board to pay a salary fixed and established by law. make mandamus the proper and exclusive remedy?"

H. H. Elders, of Reidsville, for plaintiff in error.

W. B. Stubbe, of Savannah, and Parker & Parker, of Waycross, for defendant in error.

GILBERT, J. [1] 1. Where the government in good faith pays the salary incident to an office to a de facto officer holding by color of title while he is still in possession of the office, the government cannot be compelled to pay it a second time to the officer de jure when he has recovered the office. Where, however, the government, through its authorized board, does not act in good faith, but arbitrarily and illegally deprives the de jure officer of his office, and pays the salary incident thereto to one who performs the duties of the office by virtue only of the illegal acts of the board, the de jure officer is entitled to recover his salary.

The excerpt from the decision of Morel v. Sylvania & Girard R. Co., 134 Ga. 687, 68 S. E. 588, in the first question propounded by the Court of Appeals, was not an adjudication by this court, and did not rule upon the question...