Sutton v. Adams , 180 Ga. 48 ( 1934 )

Beck,- Presiding Justice, and Worrill, Judge,

dissenting.

We concur in the ruling of the majority that the writ of mandamus, and not injunction, would have been the proper remedy to enforce the plaintiff’s alleged right as a public official to have his name and salary placed upon the budget.

But we are of the opinion that under the facts alleged the petitioner showed that he had been ousted from the office to which he claims title. The mere fact that in his allegation he does not use the expression “had been ousted,” or had been deprived of the office, does not matter, inasmuch as the allegations show that another was exercising all of the functions that petitioner was entitled to exercise, was giving direction to the subordinates in his office, and that petitioner’s salary had been cut off. Under these circumstances petitioner was virtually out of office and had the right to bring quo warranto to try the title to the office, and was therefore not entitled to the writ of injunction. Martin v. Rowland, 177 Ga. 363 (170 S. E. 235), and cit. .Independently of the case specifically mentioned, under the section of the Code relating to the writ of quo warranto, the common-law remedy was the remedy of the plaintiff and not an equitable petition. Wherefore we dissent from the opinion of the majority in so far as it results in a reversal of the judgment of the court below.