Mattox v. Board of Educ. of Liberty County

• Decision Date: 16 November 1918
• Docket Number: 1022.
• Citation: 97 S.E. 532,148 Ga. 577
• Parties: MATTOX v. BOARD OF EDUCATION OF LIBERTY COUNTY.
• Court: Georgia Supreme Court

97 S.E. 532

148 Ga. 577

MATTOX v. BOARD OF EDUCATION OF LIBERTY COUNTY.

No. 1022.

Supreme Court of Georgia

November 16, 1918

Syllabus by the Court.

Where the government in good faith pays the salary incident to an office to a de facto officer holding by color of title, it cannot be compelled to pay the salary a second time to the officer de jure when he has recovered the office; and the de jure officer, upon establishing his right to the office would have to look to the de facto officer for the moneys so received by him. Where the action of the government, through its authorized board, is arbitrary and not in good faith, the contrary rule would apply.

Where a county board of education, having wrongfully paid the salary incident to the office of county superintendent of education to the de facto officer, refuses payment to the de jure officer upon the establishment of his right, a money judgment against the board of education would be of no practical benefit to such de jure officer, and mandamus would be the proper remedy.

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.

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. 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 herein involved. That case involved a suit between an individual and a railroad company; and while the court, in the opinion, stated a principle that had been held in other jurisdictions, it also stated that--

"The present case does not involve a governmental corporation, but a case of an ex-president and ex-officials of a railroad corporation remaining in possession and causing salaries to be paid to themselves without authority of the company. * * * The rights of the public dealing with de facto officers are not involved."

The statement of the rule as between the public and de facto officers was obiter. The quoted extract from the opinion was used merely as an illustration and by way of argument. The principle involved in the first question propounded is one of first impression in this state. The necessity of orderly government and for the remuneration of those who carry out the duties of government forms the basis for the rule that has been adopted rendering the government immune from the further payment of salaries where it has, in good faith, paid to a de facto officer holding under color of title. In such a case the de jure officer who afterwards established his right to the office must look to the de facto officer to recover the salary wrongfully paid to the latter. Governmental boards and agents cannot be allowed to arbitrarily and illegally prevent one rightfully entitled to a public office from discharging the duties thereof, and deprive him of the salary incident thereto; otherwise a governmental board constituted for ministerial purposes might deprive the people themselves of their right to select their own public officers. For the reason above stated, we think the correct rule is dependent upon the good faith of the action of the board in depriving the de jure officer of his...