Mattox v. Board of Education , 148 Ga. 577 ( 1918 )

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 can not he 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., (supra), 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' bétween 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 ease does not involve a governmental corporation, but a case of an ex-president and ex-pfficials 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 ease the de jure officer who afterwards establishes 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 can not 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 office and the payment of the salary to the de facto officer. “The salary of an official position belongs to the officer occupying such position, as an incident to the office, and does not depend upon his performance of the duties of the office.” Leonard Terre Haute, 48 Ind. App. 104 (93 N. E. 872); Throop on Public Officers; § 516. Upon the various phases of this question the courts of this country are in direct conflict, and present a variety of rules. For a thorough consideration of the different rules and opinions entertained reference is made to Mechem’s Public Offices and Officers, § 332 et seq.; Throop on Public Officers, § 513-516; Coughlin v. McElroy, 74 Conn. 397 (50 Atl. 1025, 92 Am. St. R. 224). The case of Coughlin v. McElroy, cited above, is a .thoroughly considered case, citing many decisions from the courts of many States upon the question. The facts of that ease show that the de facto officer was the incumbent who failed of reelection, but, believing that he had been re-elected, retained the office until the Supreme Court decided against him. In the meantime the City of Bridgeport continued to pay him the fees of the office, and it appeared that neither the municipality nor the de facto officer had any reason to believe that the re-election of the incumbent was in doubt. The bona fides of the transaction was therefore fundamental.

2. The salary due a county superintendent of education is paid out of public funds when approved by the county boárd of education. The county board is not the custodian of public funds. It is not a body corporate with authority to sue and be- sued in the ordinary sense. Section 1526 (d) of Park’s Code, cited by counsel for plaintiff, is not operative in Liberty County. It is a part of the act of the General Assembly of 1912, which was intended to have- the effect of a general law, but with local application. Park’s Code, § 1525 (a). A money judgment against the board of education for salary due the superintendent would be of no practical benefit to the latter, as it could subject nothing to levy and sale; therefore a suit at law of this character affords the officer no remedy. Mandamus is the remedy to Compel a public officer or a county board to perform a duty imposed by law. It is the remedy in this ease, because it is the only adequate and specific remedy at law. It is available only when it is exclusive. Civil Code (1910), § 5440; Shannon v. Reynolds, 18 Ga. 160 (3 S. E. 653); Gamble v. Clark, 92 Ga. 695 (19 S. E. 54); West v. Hancock, 103 Ga. 737 (30 S. E. 513); Clark v. Eve, 134 Ga. 788 (6a), 190 (68 S. E. 598).

“The test to be applied, therefore, in determining upon the right to relief by mandamus, is to enquire whether the party aggrieved has a clear legal right, and whether he has any other adequate remedy, since the writ belongs only to those who have legal rights to enforce, who find themselves without an appropriate legal remedy. In this sense mandamus may be regarded as a dernier resort, to be used when the law affords no other adequate means of relief. And whenever the conditions above noticed coexist, the. right to the extraordinary aid of a mandamus may be regarded as, to that extent, ex debito justitise. To warrant the relief, however, the right whose enforcement is sought must be a complete and not merely an inchoate right.” High’s Extraordinary Legal Remedies (3d ed.), § 10. Por a collection of the decisions of this court with reference to the availability of mandamus as a reipedy see 9 Michie’s Enc. Dig. Ga. R. 163, 164; Eureka Pipe Line Co. v. Riggs, 15 W. Va. 353 (83 S. E. 1020, Ann. Cas. 1918A, 995).

All the Justices concu/r, except Atkinson, J., who dissents as to the first division of the opinion. Fish, O. J., concurs specially.