Talmadge v. Mcdonald

• Decision Date: 16 February 1932
• Docket Number: No. 21609.,21609.
• Parties: TALMADGE et al. v. McDONALD.
• Court: Georgia Court of Appeals

44 Ga.App. 728

162 S.E. 856

TALMADGE et al.

v.McDONALD.

No. 21609.

Court of Appeals of Georgia,

Division No. 1.

Feb. 16, 1932.

Rehearing Denied March 2, 1932.

Syllabus by the Court.

1. The petition having alleged that "by reason of the failure of said Eugene Talmadge, as Commissioner of Agriculture, to faithfully and truly perform the duties of his said office, * * * he has injured and damaged your petitioner in the breach of his said bond, " and the petition alleging that the nonperformance was continuing, and the bond, attached to the petition as an exhibit, being under seal, the action is not barred by the statute of limitations, and the demurrer of defendant Talmadge based on that ground was properly overruled.

(a) The law requiring a bond for the commissioner of agriculture, and the bond alleged to have been breached being the only bond given by the defendant Talmadge as commissioner of agriculture, and being the bond under which he served as commissioner of agriculture during the time alleged, the said bond, though irregular in some respects, "stands in the place of the official bond."

2. The petition as a whole alleges a cause of action, and shows that the plaintiff was damaged by the defendant Talmadge failing to perform his official duty, the performance of which his bond guaranteed; and the general demurrers to the petition were properly overruled.

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

Suit by G. L. McDonald against Eugene Talmadge and the National Surety Company. From the judgment overruling demurrers to the petition, defendants bring error.

Affirmed, with directions.

See, also, 171 Ga. 592, 156 S. E. 318.

G. L. McDonald brought suit against Eugene Talmadge and National Surety Company, and alleged in his petition and amendment thereto that on June 25, 1927, said Talmadge became commissioner of agriculture of the state of Georgia; that said Talmadge as such commissioner of agriculture, and with said National Surety Company as his surety, made and filed with and in the office of the Governor of said state a "bond for his faithful and true performance of all the duties of said office and to pay over and account for all funds coming into his hands by virtue of his said office, " copy of which bond is attached to the petition as an exhibit; "that the bond sued upon, a copy of which is attached to the original petition, is the bond made and filed by the defendant Talmadge as Commissioner of Agriculture, to comply with the acts of 1927 requiring bond of him, is the only bond that he did make and file, and is the bond under which he acted as Commissioner of Agriculture during said time;" that, by reason of the failure of said Talmadge to faithfully and truly perform the duties of his said office, in the respects alleged, he injured petitioner in the breach of his said bond in the sum of $2,104.75, besides interest on a part thereof; that petitioner at the time and for the term beginning October 1, 1926, and ending September 30, 1928, was state inspector of commercial fertilizers at the salary incident to said office of $100 per month, payable monthly, petitioner being what is commonly known as a long-term inspector; that it was the duty of said Talmadge as commissioner of agriculture to recognize petitioner as such inspector and furnish him supplies for performing the duties of said office; that up to January 1, 1928, it was the duty of said Talmadge, as commissioner, to draw his warrants monthly on the treasury against appropriations duly made therefor, in favor of petitioner in payment of salary due petitioner; that subsequent to January 1, 1928, and under the provisions of the Neil Act, it has been the practice for Talmadge, as commissioner of agriculture, to make requisitions monthly on the Governor for warrants to be drawn by the Governor on the treasury of the state, payable to Talmadge as commissioner, for the expenses of his department for the month, including the salaries of six long-term inspectors, and on said warrants the said Talmadge has drawn said funds and moneys from the treasury of said state; that for the part of the term of office of petitioner from January 1, 1928, to and including September 30, 1928, said Talmadge, in the manner aforesaid, has drawn and received the $100 per month for each month for the salary incident to said office; that it "was the duty of said Talmadge, as commissioner aforesaid, to pay the same to petitioner monthly as so drawn by him"; that said Talmadge as commissioner continuously refused to recognize petitioner as inspector of fertilizers, and refused to furnish petitioner supplies for discharging the duties of said office, and so refused continuously until the expiration of petitioner's term of office; that said commissioner refused to draw his warrants monthly on the treasury for the salary of $100 per month as same became due in favor of petitioner to cover the period up to December 31, 1927, and for the period since January 1, 1928, said commissioner has refused to pay over to petitioner the salary incident to said office so drawn from the treasury by him; that "by reason of the conduct of said Talmadge, as Commissioner of Agriculture and in his official capacity, petitioner has been damaged" the sum of $1,500, loss of salary, and interest thereon; that the appropriations for payment of said salary, if not withdrawn from the treasury by said Talmadge, have reverted to the general fund and are no longer available for payment of the amount due petitioner; that, to establish his right to the office and the salary incident thereto, and to force said commissioner to perform his duty to petitioner, petitioner had to bring mandamus proceedings against said commissioner; that said commissioner made three appeals from the judgments of the trial court therein, and said commissioner's resistance and stubborn litigiousness caused petitioner to incur court costs of $104.75 in the mandamus cases, and attorney's fees of $500, said fees being "to bring this suit, as well as said mandamus proceedings"; that, but for the conduct of said commissioner of agriculture and his refusal to recognize petitioner as state inspector of commercial fertilizers, petitioner would have performed the duties of said office and received said salary, and the loss and damage to petitioner is due solely to the conduct of said commissioner as aforesaid. The petition concludes with a prayer for judgment and process.

The bond signed by the defendants and attached to the petition as an exhibit, is dated June 25, 1927, and provides that "Eugene Talmadge shall faithfully and truly perform all the duties of his office, and shall pay over and account for all funds coming into his hands by virtue of his said office of Commissioner of Agriculture, State of Georgia, as required by law."

Talmadge and the National Surety Company each filed separate demurrers to the petition, and Talmadge filed a second demurrer on the ground that the action was barred by the statute of limitations. All the demur rers were overruled, and on these rulings the defendants assign error.

S. P. New and J. S. Adams, both of Dublin, and J. K. Whaley, of McRae, for plaintiffs in error.

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

LUKE, J. (after stating the foregoing facts).

This case is a sequel to much litigation between the defendant Talmadge, as commissioner of agriculture, and various fertilizer inspectors who were appointed to office by Talmadge's predecessor in office. When Talmadge assumed office as commissioner of agriculture he refused to recognize them as fertilizer inspectors or to perform such official duties as would result in their receiving their salaries, and they, or some of them, instituted mandamus proceedings, alleging, in substance, that they were lawfully holding said offices, that Talmadge as commissioner of agriculture had, without legal authority, attempted to remove them from office, and they sought to compel Talmadge, as commissioner of agriculture, to recognize their rights and perform such acts as would result in their receiving their salaries. Twelve times did the trial court render judgment against Talmadge in cases arising out of this fertilizer inspector matter, twelve times did he appeal, and twelve times did the Supreme Court render decisions adverse to him. The Supreme Court held, in effect, that the fertilizer inspectors, being quasi public officers commissioned for definite terms, were "not subject to removal by the Commissioner of Agriculture, except upon cause shown with notice and an opportunity to be heard." For further history of the preceding stages of the case, see Talmadge, Comm., v. Cordell, 167 Ga. 594, 146 S. E. 467; Id., 170 Ga. 13, 152 S. E. 91, 155 S. E. 928; Talmadge, Comm., v. McDonald, 171 Ga. 592, 156 S. E. 318. The Supreme Court held also that persons having distinct and separate interests in the subject-matter could not join as relators in an application for mandamus.

1. The petition having alleged that "by season of the failure of said Eugene Talmadge as Commissioner of Agriculture to faithfully and truly perform the duties of his said office, * * * he has injured and damaged your petitioner in the breach of his said bond, " and the petition alleging that the nonperformance was continuing, and the bond attached to the petition as an exhibit being under seal, the action is not barred by the statute of limitations, and the demurrer based on that ground was properly overruled. Harris v. Black, 143 Ga. 498 (5), 85 S. E. 742; Civ. Code 1910, § 4359.

The other two demurrers of the defendants are so nearly the same they will be considered together.

2. Does the petition allege a cause of action? Could the plaintiff sue in his own name? Was the bond, being signed before the statute required a bond, a nudum pactum? These three issues raised by the demurrers will be considered together. The statute approved August 23, 1927 (Ga. L. 1927, p. 206), requires the...