Hogansville Banking Co. v. City of Hogansville, 156 Ga. 855

Hogansville Banking Co. v. City of Hogansville

156 Ga. 855 | Ga. | 1923

Hines, J.

(After stating the foregoing facts.)

The rulings made in the first, sixth, and seventh headnotes need no further elaboration.

*859We will deal with the rulings made in the other headnotes together. The duties which mandamus will enforce must be such as result from an office, trust, or station. 26 Cyc. 163. It will not lie against a public officer to compel the performance by him of acts which do not come within his official duties. Holtzclaw v. Riley, 113 Ga. 1023 (39 S. E. 425). So it becomes necessayy to determine, in the first place, whether the defendant occupies such official or quasi-official position, trust, or station towards the plaintiff as will justify the grant of a mandamus to compel it to discharge a duty owed by it to the plaintiff. Section 9 of the charter of the City of Hogansville (Acts 1901, p. 436) provides that the council of that city, immediately after their qualification, shall elect a clerk and treasurer, either from their own body or from the citizens of the town, which offices may be separate or combined in the discretion of the council. The former city council did not elect a city treasurer, as it was their mandatory duty to do under this provision of the city charter, but designated and appointed the Hogansville Banking Co., as the depository of the money of said city, to hold the same subject to its orders. Said banking company accepted said appointment and agreed to act as the defacto treasurer of the city; and held its funds subject to its orders. So this bank became, if not the de jure treasurer of the city, its de facto treasurer; and as such could be compelled to discharge its public duties by the writ of mandamus. Bank of Chatsworth v. Hagedorn Construction Co., 156 Ga. 348 (119 S. E. 28).

We will next determine whether the plaintiff has a specific and adequate legal remedy which will bar it from resorting to the writ of mandamus. It is earnestly insisted by counsel for the defendant, that the city has a specific legal remedy by an action at law against the bank for the recovery of this sinking-fund. To sustain an application for mandamus, it is not only necessary that the applicant should have a clear legal right to the thing demanded, but he must be without any other specific adequate remedy. Mayor &c. of Savannah v. State, 4 Ga. 26; Young v. Harrison, 6 Ga. 130; Barksdale v. Cobb, 16 Ga. 13; Adkins v. Bennett, 138 Ga. 118 (74 S. E. 839); Bearden v. Daves, 139 Ga. 635 (77 S. E. 871). It is true that an action at law will lie in favor of the city against the defendant for the recovery of this fund; but is this remedy such an adequate and specific one as will prevent the city from resorting *860to the writ of mandamus ? The remedy, to be a bar to the issuing of the writ, must not only be adequate but specific. American Railway Frog Co. v. Haven, 101 Mass. 398 (3 Am. R. 377). It must be equally convenient, beneficial, and effective. 26 Cyc. 168; Fremont v. Crippen, 10 Cal. 212 (70 Am. D. 711). If such other remedy is- incomplete or inconvenient, the court exercises a sound „ discretion in granting or refusing the writ. 18 R. C. L. 132, § 45; King William Justices v. Munday, 2 Leigh (Va.), 165 (21 Am. D. 604). The rule that mandamus will not be granted where there is specific legal remedy is restricted to cases where the legal remedy is • equally convenient, complete, and beneficial. State v. North-Eastern R. Co., 9 Rich. L. (S. C.) 247 (67 Am. D. 551). “ Another remedy tedious and not so well adapted to the nature of the case as that by mandamus will not operate to prevent resort to the latter remedy.” 18 R. C. L. 132; 3 Bl. Com. 110; Dew v. Judges of the Sweet Springs, 3 H. & M. (Va.) 1 (3 Am. D. 639, 642). It is well settled that mandamus will be granted to compel a town clerk, or a clerk of a public corporation, whose office has expired, to deliver over to his successor the common seal, books, papers, and records of the corporation. Rex v. Wildman, 2 Stra. 879; St. Luke’s Church v. Slack, 7 Cush. (Mass.) 226; American Railway Frog Co. v. Haven, supra. If mandamus will lie to compel a clerk of a municipality, whose term has expired, to deliver books, papers, the common seal, and the records to his successor, why will it not lie to compel hiin to turn over to his successor or the municipality any funds of the municipality? It is more important to the corporation to have its funds than its books, papers, common seal, and records. The municipality might get along without the latter, but it can not travel far without its funds. If mandamus will lie against the clerk of a municipal corporation to compel him to do these things, why will it not lie against a bank, which has been appointed the depository of a city, to receive, hold, and pay out its moneys on its orders, and to act instead of the treasurer of such city, and is at least a quasi-treasurer, when the term of such depository has come to an end? We see no valid reason why this writ will not lie against such depository under such circumstances. Mandamus was granted to compel the treasurer of the board of education of a city to deposit the school funds in a bank with which the board had made an arrange*861ment for the payment by the bank of interest on such funds when deposited. Board of Education v. Runnels, 57 Mich. 46 (23 N. W. 481). In such a case, the board of education of the city could have recovered from its treasurer in an action at law these funds, and then deposited them in the bank; but such remedy was not as complete, convenient, and beneficial as mandamus.

Where a county treasurer has funds in his hands which it is his duty to apply to the payment of county debts, mandamus lies to compel him to pay orders drawn on him by the proper officials for the amount of-such debts. Coleman v. Neal, 8 Ga. 560; Shannon v. Reynolds, 78 Ga. 760 (3 S. E. 653); Gamble v. Clark, 92 Ga. 695 (19 S. E. 54); Neal Loan & Banking Co. v. Chastain, 121 Ga. 500 (49 S. E. 618); Smith v. Fuller, 135 Ga. 271 (3) (69 S. E. 177, Ann. Cas. 1912A, 70). Why? The holder of a county warrant for a debt of the county could sue the county and recover; but such remedy would not be as convenient, speedy, and beneficial as the writ of mandamus. Besides, mandamus is the proper remedy to enforce the performance of official duties. If a county treasurer can be compelled to pay a lawful warrant drawn upon him by the proper county officials, we see no reason why the depository of a city, designated and appointed by its council to receive and hold its funds subject to its orders, can not be compelled to pay the warrant or order of the city drawn on such depository for its sinking fund. .

By accepting the appointment of depository for the City of Iíogansville, and by acting as its de facto treasurer, the bank undertook to discharge a public duty; and mandamus is the appropriate remedy to enforce this public duty by this banking corporation^ State v. North-Eastern R. Co., supra. Mandamus will lie at the instance of a private party to enforce the performance by a corporation of a public duty as to matters in which he has a special interest. Civil Code (1910), § 5442. Then, when a banking corporation assumes a public trust or station in behalf of a city and to discharge a public and quasi-official duty in its behalf, it can be compelled to discharge such duty by mandamus. It follows that this bank can be compelled by mandamus to turn over to the city its sinking-fund, which it wrongfully holds without security, so that the city can invest it in the bonds in which the law declares it shall be put.

*862 Judgment affirmed.

All the Justices concur, except AtMnson and Gilbert, JJ., dissenting.