Parham v. Roach , 196 Ga. 622 ( 1943 )

1. The petition set forth a cause of action for mandamus, and the trial court was correct in refusing to sustain the general demurrer.

2. There was ample evidence to authorize the judge, who by agreement passed upon the facts involved, to find that the defendants were due to plaintiff the amount claimed, and that the plaintiff had not waived his right to recover.

3. Under the evidence the petitioner was not estopped to claim payment for the additional unpaid portion of his per diem rate; nor is the doctrine of stale demands or laches applicable to the facts in this case.

No. 14618. SEPTEMBER 10, 1943. REHEARING DENIED OCTOBER 8, 1943. On March 13, 1943, A. S. Roach filed a petition for mandamus against Jepp H. Parham, F. P. Smith, P. C. Hutcheson, and Mrs. Lucy Bergany, as members of the State Board of Barber and Hairdresser Examiners, alleging in substance the following: On February 12, 1938, he was appointed and qualified as a member of said board, to fill an unexpired term ending November 9, 1938, and served as such during said period. There were five members of said board. Though the law had designated the pay of members of the board at $10 per diem under the Cod, § 84-405, the members had previously by agreement and acquiescence fixed their rate at $7.50 per day. On April 11, 1938, in his absence three of the five members of the board held a meeting and passed a resolution appointing petitioner and another member of the board as inspectors. The rate of pay for inspectors was $5 per day, and not $7.50 per day as provided for members of the board. Petitioner was not present at the meeting when said resolution was passed, and had no opportunity to protest. Said resolution was void, and did not affect his status as a member of the board, as only the Governor could remove him, and the board was without authority to remove from office any of its members; and it was void because its effect was to reduce petitioner's salary from $7.50 per day to $5 per day. After the date of this resolution he worked 180 days for which he was paid $5 per day, and he is entitled to $2.50 per day additional for 180 days, amounting to $450, and to $22.50 covering three days services at $7.50 per day before passage of the resolution referred to above, for which he was never paid. He made written demand on the board for the amount due on December 6, 1941, and the board refused to allow said claim. During the period of February 12, 1938, through November 9, 1938, while he was a member thereof, and at all times since then, and up to the date of filing of his petition, the board at all times has had sufficient funds on hand that could be used for the purpose of paying his claim, and that could have been, and now can be, lawfully applied to the payment of his claim. He prayed for production of certain documents, for mandamus requiring approval and allowance of said claim, and for general relief.

The court issued a mandamus nisi, requiring the board and its members to show cause why a mandamus absolute should not be issued. The respondents filed a demurrer and answer. The demurrer was based on the grounds: (1) no cause of action; (2) the petition does not show any right to have respondents perform the acts prayed for; (3) it shows no legal duty upon them to perform such acts; (4) petitioner's demand is stale; he is guilty of laches, he failed to file demand at termination of his services, and he is estopped from seeking relief; (5) the relief prayed for is within discretionary duty of the board; (6) in accepting the $5 per day he waived and renounced any additional salary due him. The answer, to which there was a demurrer to part thereof, was a denial of essential facts contained in the petition.

On the hearing counsel for all parties agreed for the court to pass on the case without the intervention of a jury. The court entered a judgment in favor of the petitioner for $22.50 as balance of compensation from February 14, 1938, through February 19, 1938, and $450 as balance of compensation from April 11, 1938, through November 9, 1938; and made the mandamus absolute. The defendants excepted. Parts of the testimony are included in the opinion, infra. 1. The petition set forth a cause of action for the writ of mandamus, and the court did not err in refusing to sustain the demurrer. Dunn v. Meyer, 193 Ga. 91 (17 S.E.2d 275).

2. The petitioner testified, that he was a duly appointed and qualified member of the board from February 14, 1938, through November 9, 1938; and that the resolution of April 11, 1938, which attempted to reduce him from a member of the board to an inspector for the board, and reduced his per diem from $7.50 per day to $5 per day was done in his absence, and without his consent and approval. On this subject he testified: "I never consented or agreed for my compensation to be reduced. . . They said . . I would get the balance of the pay. . . I wasn't present at the time [the three other members] passed this resolution. . . They told me about it later. . . I didn't agree to that, . . and I protested. . . I never did agree. . . In making out my statements, the majority of the board required me to make them out at $5.00 per diem. At that time they would not pay me any greater amount. . . I did not resign or relinquish my rights as a board member. I didn't agree to serve in the capacity of an inspector rather than a board member. . . When they gave me $5.00 instead of $7.50 I was promised the balance at the expiration of my term. . . I have tried continuously since my term expired to get an adjustment of this matter with the board. All during the year 1939 I thought I was going to get it. . . Every time a new member came on I would get some encouragement about my claim. . . I finally filed a written demand on the board. . . I did have notice that they passed [the resolution] and from then on I continued to work. . . I filed my claim [for services] at $5.00 per diem. . . There was nothing to keep me from filing it for $7.50. I expected to get the balance. I attended every meeting held by the State Board from November 9, 1938, except one at Columbus. I didn't have a vote in the meeting. . . I did not acquiesce in the set up that I act as an inspector and not participate in the voting, that the three members made. I protested. Those three members constituted a majority of the board. They excluded me from voting and refused to recognize me as a voting member. They would not have recognized my vote if I had undertaken to vote. I never agreed to not being recognized as a voting, full participating member. It was forced on me. . . As to what they said about paying me $7.50 per day, they said I would get it later. The question of my extra pay came up from time to time during the period. The three majority members took the position at that time that they would not pay it then, but later. . . The first written claim I filed asking for additional salary was in 1939."

The respondents introduced evidence in the nature of a general denial of the petitioner's right to recover, and with a view to establishing the fact that by his conduct he had waived his right, if any he had, to recover. This evidence was not sufficient to demand a finding in the respondents' favor. There was ample evidence to authorize the judge to find that the defendants were due to the plaintiff the amount claimed, and that the plaintiff had not waived his right to recover. In this respect the case differs from Dunn v. Meyer, supra, as the evidence there showed a waiver, whereas in the instant case no waiver was established.

3. Under the facts the petitioner was not estopped to claim payment for the additional unpaid portion of his per diem rate. Neither is the doctrine of stale demands or laches applicable to the facts. Tinsley v. Rice, 105 Ga. 285, 290 (31 S.E. 174); Freeney v. Pape, 185 Ga. 1 (5) (194 S.E. 515);Best v. Maddox, 185 Ga. 78 (2), (3) (194 S.E. 578);Irons v. Harrison, 185 Ga. 244 (6) (194 S.E. 749).

Judgment affirmed. All the Justices concur.