Bahnsen v. Young

159 Ga. 256 | Ga. | 1924

Dissenting Opinion

Gilbert, J.,

dissenting. Under the statement of the pleadings and the evidence it appears that on November 7, 1923, at a regular meeting the commissioners of roads and revenues of Brooks County formally adopted a resolution, after reciting certain reasons therefor, “that further co-operation with the present system be withdrawn, and no funds be paid out by this body for this purpose after December 31st, 1923.” The term “present system!’ has reference to the system of dipping for tick-eradication under the statute of this State. The petition for mandamus to require the commissioners to perform their duty under this statute was filed in December, 1923. A rule nisi thereon was granted on December 19, 1923. The interlocutory hearings in pursuance of the rule nisi took place on December 29, 1923. A portion of the judgment rendered, and on which error is assigned, provides: “The commissioners will co-operate with him [State veterinarian] until such time [July 31, 1924], and after such date whether they will or will not do so is left to the judgment and discretion of the commissioners.” It must be confessed that the judgment is not entirely clear. Whether the judge meant the words “the commissioners will co-operate” to be a mandate requiring them to cooperate, or whether it was an expression of opinion that the commissioners would voluntarily do so, can not be stated with certainty. If it is a mandate, then I think the judgment was correct under the law and the evidence, and an affirmance should follow. If it was a denial of a mandamus, then a reversal should follow. The resolution of the commissioners was a definite statement and announcement of a refusal to abide by the statute controlling in the situation. Whatever may have been their reasons therefor, however well founded in fact and logic such reasons may have been, there was but one question for the commissioners to determine; and that was, what is the law? The ruling of the majority to the" effect that mandamus “is not an appropriate remedy to compel a general course of official conduct for a long series of continuous acts to be performed under varying conditions” is undoubtedly sound law. Some of the prayers in the petition were, under this ruling, inappropriate and could avail petitioner nothing. One of the prayers, however, was “to compel [the commissioners] to comply with the provisions of the .tick-eradication law.” The resolution of the commissioners already passed was a definite announcement of their refusal to obey the law. “When the case presents a. single occasion, and calls for an action which is presently determinate, it is entirely practicable to direct the act by mandamus.” Jackson v. Cochran, supra. “Where the act required to be done involves the exercise of some degree of official discretion and judgment upon the part of the officer charged with its performance, the writ may properly command him to act, or, as is otherwise expressed, may set him in motion; it will not further control or interfere with his action, nor will it direct him to act in any specific manner.” Richmond County v. Steed, 150 Ga. 232 (103 S. E. 253). For these reasons I am compelled to dissent from the judgment; I am authorized to say that Presiding Justice Beck concurs in this dissent.

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Lead Opinion

Atkinson, J.

1. While mandamus will lie to compel performance of specific official acts, where the duty to discharge them is clear, it is not an appropriate remedy to compel a general course of official conduct for a long series of continuous acts to be performed under varying conditions. Jackson v. Cochran, 134 Ga. 396 (67 S. E. 825, 20 Ann. Cas. 219, and cases cited in note); State v. Brewer, 39 Wash. 65 (80 Pac. 1001, 109 Am. St. R. 858, 4 Ann. Cas. 197, and cases cited in note); People v. Busse, 238 Ill. 593 (87 N. E. 840, 28 L. R. A. (N. S.) 246, and cases cited in note); 18 R. C. L. 119, § 33. Applying the foregoing principle, the decision of the trial court was not erroneous in so far as it may be construed as denying the writ of mandamus to compel the county commissioners of Brooks County to comply with the provisions of the tick-eradication law, and to “construct and maintain such number of dipping-vats as may be fixed by the State veterinarian or his authority and provide the proper chemicals and other materials necessary to be used in the systematic work of tick-eradication in Brooks County, and to provide and pay the salaries of the necessary number of inspectors or agents to assist in this work, and to appoint said inspectors or agents subject to the approval of the State veterinarian, and to fix such salaries of said inspectors and agents as shall be sufficient to insure the -employment of competent men, and to do such other things as shall be necessary, by law, to carry on the work of tick-eradication in the County of Brooks.”

2. Por reasons indicated above, the defendants under the facts of this case were entitled to a judgment denying mandamus; and the court erred in not rendering such judgment.

Judgment affirmed on the main bill of exceptions, and reversed on the cross-bill of exceptions.

Beck, P. J., and Gilbert, J., dissent. The other Justices concur. George B. Davis and Branch & Snow, for plaintiff. Bennet & Bennet, for defendants.