Doyal v. Russell

Beil, Justice,

dissenting. Where a special fund is created or set aside by statute for a particular purpose or use, it must be administered or expended in accordance with the statute, and not diverted to any other purpose; and if a public officer is about to divert the same, he may in a proper case b$ restrained from such illegal diversion and expenditure. Mitchell County v. Cochran, 162 Ga. 810 (134 S. E. 768); City of Fayetteville v. Huddleston, 165 Ga. 899 (142 S. E. 280); 59 C. J. 232, § 378. Does the petition contain sufficient allegations to show an illegal diversion of the gasoline tax funds, as against a general demurrer? While in paragraph 14 the plaintiff alleged that this defendant “will divert and pay the same out illegally under the proclamation above referred to, or otherwise in direct violation of the laws and constitution of this State,” and while this one averment might be too indefinite and uncertain where it does not appear that the proclamation itself involved a diversion, yet in other portions of the petition it was alleged positively and without qualification that the funds derived from the gasoline tax are being diverted by the defendant Daniel to other purposes than those to which they are allocated by law, and that Daniel and Doyal are co-operating to the same illegal end. See paragraph 12 of the petition. In paragraph 13 the petition alleges that the defendant Doyal “has cooperated and is co-operating and - will co-operate with the .other defendant, the said J. B. Daniel, to divert illegally the said gasoline taxes from the funds and purposes for which the same were levied, collected, and allocated.” There was no special demurrer calling for a more specific averment in .regard to the alleged diversion, or complaining of duplicity, and as against a mere general demurrer the allegations were sufficient to show a diversion of the funds by the defendant Daniel.

Since the decision by the majority has reversed the judgment solely upon the ground that the allegations were too indefinite to show a diversion by any of the defendants, the writer will not discuss the other questions raised.