Sutton v. Adams
| Decision Date | 17 December 1934 |
| Docket Number | 10166. |
| Citation | 178 S.E. 365,180 Ga. 48 |
| Parties | SUTTON v. ADAMS et al. |
| Court | Georgia Supreme Court |
Rehearing Denied Jan. 21, 1935.
Syllabus by the Court.
1. A general demurrer to a petition is one which attacks the sufficiency of the petition as a whole, and should be overruled if any part thereof is good in substance.
2. The writ of mandamus, and not injunction, would have been the proper remedy to enforce the plaintiff's alleged right as a public official to have his name and salary placed upon the budget; but the petition was not subject to dismissal as a whole, if it alleged sufficient ground for the grant of an injunction with respect to other matters of which complaint was made in the petition.
3. The plaintiff alleged in effect that he was the incumbent in the office of state veterinarian, in the possession of such office and exercising the duties thereof, and that two of the defendants, the commissioner of agriculture and another, were interfering with such possession, and with the performance of the plaintiff's duties by means of personal intrusion and attempted usurpation, it being alleged in effect that acts of the commissioner were capricious and arbitrary. These averments were sufficient to show cause for injunctive relief. As to this phase of the case, it appears from the allegations that neither quo warranto nor mandamus would have constituted an adequate remedy; nor was the right to sue affected by section 113 of the Reorganization Act (Acts 1931 p. 45).
4. Upon application of the foregoing rulings, the petition was not subject to dismissal as a whole as contended in grounds 4 and 5 of the demurrer filed by the defendants, nor was the petition otherwise fatally defective as failing to state a cause of action. The court properly sustained ground 23 of the demurrer which was addressed to a particular paragraph of the petition, but with this paragraph eliminated, the petition was still sufficient to state a cause of action for injunctive relief, and it was error to dismiss the petition as a whole.
Error from Superior Court, Newton County; John B. Hutcheson, Judge.
Petition for injunction by J. M. Sutton, State Veterinarian, against G. C. Adams, Commissioner of Agriculture, and others. To review a judgment dismissing the petition on demurrer plaintiff brings error.
Reversed.
J. M Sutton, state veterinarian, instituted injunction proceedings against G. C. Adams, commissioner of agriculture, W. E White, and Tom Wisdom, state auditor. The petition contained the following allegations and prayers:
"1. This petitioner shows that he is State Veterinarian of the State of Georgia, having been duly appointed, qualified and confirmed as such officer, and has been such State Veterinarian since the 11th day of July, 1927, and has been continuously in office from said date up to and including the date of the filing of this petition.
2. That G. C. Adams is Commissioner of Agriculture of the State of Georgia, and is a resident of the above State and County.
3. That W. E. White is a citizen of Tift County, Georgia.
4. That Tom Wisdom is State Auditor and ex officio member of the State Budget Commission, and is a resident of Harris County, Georgia.
5. That the said G. C. Adams of Newton County, Georgia, W. E. White of Tift County, Georgia, and Tom Wisdom of Harris County, Georgia, are named defendants herein.
6. Petitioner shows that as State Veterinarian, he has certain specific duties to perform as enumerated in section 2081 (2), section 2082 (2), section 2082 (3), section 2082 (4), section 2082 (5), section 2082 (7), section 2082 (9), section 2082 (10), section 2082 (13), section 2082 (15), and section 2082 (16) of Michie's Code of Georgia, said duties being delegated by the legislature directly as the duties of your petitioner, the State Veterinarian.
7. Petitioner shows that by the provisions of the Acts of 1929, page 336, section 3 of said Acts, as set forth in Michie's Code of Georgia in section 2081 (3), your petitioner's salary was fixed at $4,200.00 per year.
8. Petitioner shows that by the acts of the General Assembly of 1931, page 40, approved on August 28, 1931, by the provisions of the bill known as the Re-Organization Bill, Article 2, Section 97 thereof, your petitioner was constituted State Veterinarian for a term of four years from the date when said act took force and effect, to wit, January 1, 1932.
9. Petitioner shows that he, as State Veterinarian, is a part of the department of agriculture, and that there was appropriated for the support of the department of agriculture for the operation of said department of agriculture for the year 1934 and for the year of 1935 the sum of $156,000, and that said money or so much thereof as by law is provided is available and will be available for the support of the said department of agriculture, and that your petitioner's salary is a part of the expense incident to the operation of said department, your petitioner being an officer filling an office duly created by law, and whose salary was fixed by law.
10. Petitioner shows that by the original acts of 1910 creating the office of State Veterinarian, the State Veterinarian held office during good behavior and proper performance of his duties, but your petitioner shows further that the aforementioned Acts of 1931, known as the Re-Organization Bill, created a term of office for the office of State Veterinarian and struck the words from the original statute 'during good behavior and proper performance of his duties,' and therein constituted arbitrarily your petitioner as State Veterinarian for a term of four years as aforesaid.
11. Petitioner shows that under the provisions of the law, it is a duty of the commissioner of agriculture, the head of the department, to prepare and submit a budget of the salaries and expenses of his department, and your petitioner shows that the said G. C. Adams, as commissioner of agriculture, has drawn and submitted a budget of his proposed expenditures for salaries and expenses incident to carrying on the work of said department of agriculture, including your petitioner's division thereof, and that the said G. C. Adams in submitting said budget, wilfully and deliberately omitted your petitioner's name therefrom as State veterinarian or in any other capacity, and that by the provisions of law your petitioner will be unable to draw his salary to which he is entitled under the provisions of law unless his name is included in said budget for the year 1934.
12. That your petitioner will be helpless and is without any remedy to collect his salary provided by law unless the court of equity intervenes and protects your petitioner's right in the premises.
13. Petitioner shows that the budget commission, as provided by law, is composed of the Governor of the State of Georgia, and the State Auditor, who at present is Tom Wisdom, one of the aforementioned defendants, and your petitioner avers on information and belief that the said G. C. Adams, commissioner of agriculture, left your petitioner's name off of said budget at the instance and request of the Governor of the State of Georgia, the said Governor having vetoed the special appropriation by the General Assembly in the appropriation bill for 1934 and 1935, said appropriation being $50,000; and the said Tom Wisdom, his attention being called to the omission of your petitioner's name, has refused to place your petitioner's name on said budget. Your petitioner shows further that the Governor of the State of Georgia, is not subject to process of the court or a writ of mandamus or an injunction, but that the State auditor, Tom Wisdom, is subject to the mandates of the court.
14. Petitioner shows that G. C. Adams, as commissioner of agriculture, is seeking unlawfully and without authority or law to discharge your petitioner as State veterinarian, and that in the furtherance of this unlawful plan and purpose, he, on the 2nd day of January, 1934, employed and designated one W. E. White, one of the defendants aforementioned, as Chief Veterinary Advisor, or some other unauthorized title, and sent the said W. E. White into your petitioner's office to take charge of the work delegated by statute to your petitioner, and caused notice to be sent to various employees of your petitioner as State veterinarian to the effect that your petitioner was no longer in charge of the work delegated to him, your petitioner, by statute and with instructions to said employees to take no orders from your petitioner thereafter whatsoever; that the said W. E. White, acting by and through the supposed authority granted to him by the said G. C. Adams as commissioner of agriculture, is undertaking to take over your petitioner's duties and illegally perform the duties, or attempt to perform the duties, delegated by statute to your petitioner, and as a result of said conduct the said commissioner of agriculture, and the said W. E. White, your petitioner's work, as State veterinarian, is being completely stultified, and irreparable damage will flow to your petitioner and to the live stock and dairy industries of this State unless the unlawful interference with your petitioner be restrained and enjoined.
15. Your petitioner shows that the withholding of his name from the budget is part and parcel of the plan and scheme unlawfully conceived by the commissioner of agriculture and others to destroy your petitioner as a State official, and by withholding his pay to which he is lawfully entitled, to procure the abandonment of petitioner's important work to which he has dedicated himself as State veterinarian, and that Tom Wisdom, State auditor aforesaid, and member of the budget commission, is cognizant of this plan...
To continue reading
Request your trial
-
Raines v. Shipley
... ... Pardue Medicine Co. v ... Pardue, 194 Ga. 516(2), 22 S.E.2d 143; Stroup v ... Imes, 185 Ga. 422(1), 423, 195 S.E. 411; Sutton v ... Adams, 180 Ga. 48(1), 55, 178 S.E. 365. We do not think ... that the ruling of this court in Georiga Railway & Power ... Co. v. Decatur, ... ...