Talmadge v. Cordell
| Decision Date | 13 December 1928 |
| Docket Number | 6762,6768. |
| Citation | 146 S.E. 467,167 Ga. 594 |
| Parties | TALMADGE, Commissioner of Agriculture, v. CORDELL. CORDELL v. TALMADGE, Commissioner of Agriculture. |
| Court | Georgia Supreme Court |
Rehearing Denied Jan. 23, 1929.
Syllabus by Editorial Staff.
Where plaintiff did not seek to test title of adverse claimant to place of fertilizer inspector claimed by plaintiff, but sought to compel commissioner of agriculture to recognize rights of plaintiff, whom commissioner attempted to remove and to compel him to draw warrants on state treasury for his salary, remedy of mandamus may be invoked to compel such action by commissioner of agriculture.
Under Civ. Code 1910, § 5440, mandamus will lie to compel commissioner of agriculture to discharge official duty to keep correct account of money received from inspection of fertilizers, and to pay same into treasury as received, and to draw warrants on treasury against such funds for payment of salaries of fertilizer inspectors, as required by section 1795, amended by Acts 1912, p. 56 (Park's Ann. Civ. Code § 1795).
Under Acts 1912, p. 52 (Park's Ann. Civ. Code, § 1780) providing that state inspectors of fertilizer shall be commissioned for term of two years, term of service is necessarily fixed for two years from date on which they are commissioned.
Appointing power is clothed with power to fix beginning of term of first appointee, even in absence of legislation fixing beginning of term, and thereafter all subsequent terms are to conform to beginning of term of first appointee.
State inspector of fertilizer, commissioned for definite term of two years, under Acts 1912, p. 52 (Park's Ann. Civ. Code § 1780), being a quasi public officer, was not subject to removal by commissioner of agriculture, except on cause shown with notice and opportunity to be heard.
Special oath, required by state inspector of fertilizers, appointed by commissioner of agriculture, under Civ. Code 1910, §§ 1780, 1782, to faithfully discharge all duties required of him, is not oath required by section 272 to be filed in executive office, which are official oaths referred to in section 269, but must be filed with commissioner of agriculture.
Inspector of fertilizer, appointed under Acts 1912, p. 52 (Park's Ann. Civ. Code, § 1780), is not such civil officer as must be commissioned by Governor, under Civ. Code 1910, § 263.
Petition for mandamus by fertilizer inspector, to compel commissioner of agriculture to recognize petitioner as inspector, and to issue warrants on state treasury for payment of his salary, alleging qualifications as inspector, commissioner's refusal to recognize him, and attempt to remove inspector without notice, charges, or hearing, and failure to approve warrants for payment of inspector's salary, held not demurrable.
In mandamus by inspector of fertilizer, to compel recognition by commissioner of agriculture, and to compel commissioner to approve warrants for payment of his salary, paragraph in petition, alleging that commissioner was without power to discharge or remove petitioner, since no provision was made for notice or service of copy of charges or opportunity to be heard, and that Acts 1912, p. 52 (Park's Ann. Civ. Code, § 1780), authorizing commissioner to discharge inspector was void and in violation of Const. art. 1, § 1, par. 3, held properly stricken on demurrer.
Rule, that payment of salary to de facto officer in possession and discharging duties of office is generally defense to action by rightful officer to recover salary, and that de jure officer must establish title to office in direct action, is not applicable, where no one has been specifically appointed to office in place of rightful officer, or where full complement of officers has not been appointed, or where it is shown that government did not in good faith pay salary to de facto officer.
Appointment by commissioner of agriculture of six persons to act until further notice from him, and designation of one of such appointees to act in territory served by relator sought to be ousted by commissioner, and seeking to compel payment of his salary, did not amount to specific appointment of another to position held by relator, so as to preclude recovery of salary.
To justify court in refusing writ of mandamus, on ground that party applying therefor has slept on his rights, laches must be gross, and delay unreasonable.
In petition, by inspector of fertilizer, for mandamus, to compel commissioner of agriculture to recognize rights of inspector, and to draw warrants for salary, alleging that commissioner wrote petitioner that his salary was discontinued and other inspectors appointed on June 29 and September 20, 1927, that no previous notice of attempted removal had been given, that counsel was employed to bring suit, but that, because of illness and counsel's assurance that commissioner's acts were void, other counsel were not appointed, that petition for mandamus was filed April 7, 1928, before expiration of term of inspector on October 1, allegations held not to show that petitioner was guilty of such gross negligence as to bar him from applying for mandamus.
Error from Superior Court, Telfair County; Eschol Graham, Judge.
Petition for mandamus by I. H. Cordell against Eugene Talmadge, as Commissioner of Agriculture. To review the judgment, defendant brings error, and plaintiff files cross-bill of exceptions. Affirmed on main bill of exceptions, and affirmed in part and reversed in part on cross-bill.
Allegation by fertilizer inspector, that commissioner could not remove inspector, and that statute authorizing discharge was unconstitutional, held properly stricken on demurer. Park's Ann.Civ.Code, § 1780; Const. art. 1,§ 1, par. 3.
On April 7, 1928, I. H. Cordell filed his petition (afterwards amended) against Eugene Talmadge, as commissioner of agriculture, making the following allegations: J. J. Brown, as commissioner of agriculture, appointed I. H. Cordell as the long-term fertilizer inspector for the term beginning October 1, 1926, and ending October 1, 1928. The salary incident to said office is $100 per month. Cordell qualified by taking and filing with the commissioner of agriculture the oath of office prescribed by statute. Brown was succeeded, as commissioner by Eugene Talmadge, on June 25, 1927. On June 29, 1927, the new commissioner wrote Cordell that his salary as a long-term fertilizer inspector had been discontinued on June 25; and that, should Cordell desire a hearing on cause before him, he might have the same by application as soon as the business of the office would permit. On the same day the new commissioner of agriculture wrote to Cordell, requesting him to send in with his bill of expense all equipment for sampling fertilizers and all samples. Cordell declined to comply with this request. On September 20, 1927, Commissioner Talmadge wrote to Cordell that he had appointed 6 long-term fertilizer inspectors to take the places of the ones that were appointed by his predecessor in office, and that W. E. Sealey had the territory formerly allotted to Cordell. Cordell has always been ready, able, and willing to perform the duties of the office of fertilizer inspector, to which he had been appointed by Brown, and he repeatedly so notified Commissioner Talmadge, and demanded of him the salary of $100 per month from and including the month of July, 1927.
The first and only notice which Cordell had that Commissioner Talmadge would attempt to remove him was that contained in the letters above referred to. No charges had been preferred against him, and no opportunity given for a hearing or trial. There were 5 other long-term state inspectors of fertilizer who held office for the same term as Cordell. One of these, Oliver Purvis, resigned his office. Commissioner Talmadge attempted to discharge the other 4 from office at the same time and in the same manner in which he attempted to discharge Cordell. There were 40 short-term inspectors holding office for the same term as Cordell; and the commissioner of agriculture on the same day attempted to discharge and remove them from office. Cordell alleges that the attempt to remove him from office was illegal and void, for the reasons above stated. Cordell avers that he has learned that Commissioner Talmadge claims to have found that the oath of office required by statute was not filed in the executive office, that no commission had been issued to him by the Governor, and that, for this reason, the office was vacant. Cordell contends that this claim is not well founded, since he has discharged the duties of the office since his appointment in October, 1926; that it was not necessary to file his oath of office in the executive office, and for state inspectors to be commissioned by the Governor; that he holds legal title to the office by reason of his appointment; that he did take the oath of office required by statute, and filed it with the commissioner of agriculture, who issued to him a commission; that, if said oath should have been filed in the executive office, it was not his fault that this was not done, but was the fault of the commissioner of agriculture; that all oaths of inspectors appointed by the commissioner of agriculture had been filed and kept in his office, and no commissions had been issued by the Governor to inspectors of fertilizers in this state; that the act of 1912 (Laws 1912, p. 52) provided that the commissioner of agriculture should appoint 6 long-term inspectors of fertilizer, who should be commissioned for a term of two years; that said commissioner made the first appointments under said act for terms beginning October 1, 1912; and that, since said time, the appointments of all successors have been made in periods of two years,...
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