Talmadge v. Cordell, No. 7096.

• Court: Supreme Court of Georgia
• Writing for the Court: HINES
• Citation: 170 Ga. 13,152 S.E. 91
• Decision Date: 12 February 1930
• Docket Number: No. 7096.
• Parties: TALMADGE, Com'r of Agriculture. v. CORDELL.

170 Ga. 13

152 S.E. 91

TALMADGE, Com'r of Agriculture.
v.
CORDELL.

No. 7096.

Supreme Court of Georgia.

Feb. 12, 1930.

Motion to Rehear Denied Feb. 22, 1930.

Syllabus by the Court.[152 S.E. 92]

Russell, C J., and Atkinson, J., dissenting from so much of the rulings in the third, fourth, and fifth headnotes and corresponding divisions of the opinion as holds that mandamus should issue for any part of the salary.

Error from Superior Court, Telfair County; Eschol Graham, Judge.

Petition for mandamus by I. H. Cordell against Eugene Talmadge, as Commissioner of Agriculture. Judgment for plaintiff, and defendant brings error.

Affirmed with direction.

L. P. Goodrich, of Griffin, Geo. M. Napier, Atty. Gen., T. R. Gress, Asst. Atty. Gen., S. P. New, of Dublin, and J. K. Whaley, R. W. Cooper, and L. C. Harrell, all of McRae, for plaintiff in error.

W. S. Mann, of McRae, for defendant in error.

HINES, J.

This is the second appearance of this case in this court. See Talmadge v. Cordell, 167 Ga. 594, 146 S. E. 467, where the facts then appearing are sufficiently set out in the report. In an amendment to his petition, filed on July 20, 1928, Cordell alleged, in the fourth paragraph, that defendant as commissioner of agriculture had given certificates to six individuals, the exact terms of which Cordell could not allege, for the reason that the certificates were not in his possession, but the substance of which was that said individuals were authorized to inspect fertilizers until further notice from the commissioner; that none of these six individuals was named as state inspector of fertilizer to the office filled and occupied by him, and that none was commissioned by the defendant or the Governor of this state. In the fifth paragraph petitioner alleged that the defendant was familiar with the decisions of this court holding that an official, such as petitioner, could not be removed from office without a hearing and notice of the charges, and was fully aware of the fact that the Legislature had declined to give defendant the arbitrary power sought to be exercised by him. At his instance and during the session of the General Assembly of 1927, there were introduced certain bills for the purpose of giving to the commissioner of agriculture the power and authority to revoke the commissions issued by his predecessor in office, and to give him the power to remove any appointee of his predecessor, or of himself, without cause. The commissioner appeared before the committee of the General Assembly and urged the passage of said bills, and knew that they were defeated. In the seventh paragraph it was alleged that petitioner, soon after defendant stated that he would discontinue paying to petitioner the salary of said office, employed counsel to bring the necessary suit to compel defendant to recognize petitioner and pay him the salary due him as inspector, but said attorney, before he had time to look into the matter and file the suit, became seriously ill and remained so until a week or ten days prior to the filing of this suit; that petitioner would have employed other counsel and proceeded with the suit but for the fact that his attorney assured him that the acts of the defendant were wholly illegal and void, and that the Governor would not approve warrants for the payment of the salary incident to said office to any one else, and that he would take the matter up with the Governor for this purpose; and petitioner is advised and believes that his attorney did take the matter up with the Governor, and had assurance that no salary incident to said office would be paid to any one else. At the time of the filing of the suit the season for inspecting fertilizers had just opened, and petitioner, before suing, again demanded that the defendant supply him with the necessary containers for performing the duties of his office. In the eighth paragraph petitioner alleged that he still occupied the office of inspector of fertilizer under his appointment and commission. He admitted that he had not been able to discharge the duties of said office, because the defendant had failed to furnish him the necessary containers for taking and reporting samples; but he averred that there was and had been no vacancy in the office occupied by him, and that the acts of the defendant of which he complains were unreasonable and arbitrary; that if the defendant claims to have paid to any other person the salary incident to the office occupied by him, such acts and conduct were in bad faith, and if he attempted to appoint any one else to the office occupied by petitioner, this was likewise unlawful and in bad faith, defendant being fully informed of all the facts and circumstances of the case.

[152 S.E. 93]

When the case was first tried there was no answer by the defendant to this amendment of the petition. In an answer sworn to by the defendant and filed on February 16, 1920, the defendant denied the allegations of the fourth, fifth, seventh, and eighth paragraphs stated above, and made the following allegations: Another person had been specifically appointed to this office in place of petitioner, which appointment was made immediately after defendant assumed the office of commissioner of agriculture. The law provides for six long-term fertilizer inspectors, and six were specifically appointed by him immediately after he assumed office, which constituted a full complement of officers. Ever since the salaries have been paid by him in good faith to these appointees. Plaintiff is barred by laches, he having slept over his rights without any excuse, and has been guilty of gross laches and unreasonable delay. The writ of mandamus should not be made absolute, for the reason that, under the Neill Act of 192T, all funds that this defendant had on hand as commissioner of agriculture on January 1, 1928, reverted to the treasury and became a part of the general fund of the state, and under said act and other law it is legally impossible for defendant to make payment to petitioner for any salary for any years previous to 1929. It would be a misdemeanor on his part to do so. He is not allowed by law to pay the appropriations for the year 1929 for any back salaries, or any other back expenses; the only way such payments could be made would be for the Legislature to pass a deficiency appropriation bill. The writ of mandamus never issues where it would be ineffectual to accomplish its purpose, and defendant has no funds from which he could pay the salaries sued for. The right of the plaintiff to...