148 Ga. 577 | Ga. | 1918
1. Where the government in good faith pays the salary incident to an office to a de facto officer holding by color of title while he is still in possession of the office, the government can not he compelled to pay it a second time to the officer de jure when he has recovered the office. Where, however, the government,'through its authorized board, does not act in good faith, but arbitrarily and illegally deprives the de jure officer of his office,' and pays the salary incident thereto to one who performs the duties of the office by virtue only of the illegal acts of the board, the de. jure officer is entitled to recover his salary.
The excerpt from the decision of Morel v. Sylvania & Girard R. Co., (supra), in the first question propounded by the Court of Appeals, was not an adjudication by this court, and did not rule, upon the question herein involved. That case involved a suit' bétween an individual and a railroad company; and while the court, in .the opinion, stated a principle that had been held in other jurisdictions, it also stated that “the present ease does not involve a governmental corporation, but a case of an ex-president and ex-pfficials of a railroad corporation remaining in possession and causing salaries to be paid to themselves without authority of the company . . The rights of the public dealing with de facto officers are not involved.” The statement of the rule as between the public and de facto officers was obiter. The quoted extract from the opinion was used merely as an illustration and by-way of.argument. The principle involved in the first question propounded is-one of first impression in this State. The necessity - of orderly government and for the remuneration of those who carry out the duties of government forms the basis for the rule that has been adopted rendering the government immune from the further payment of salaries where it has, in good faith, paid to a de facto
2. The salary due a county superintendent of education is paid out of public funds when approved by the county boárd of education. The county board is not the custodian of public funds. It is not a body corporate with authority to sue and be- sued in the ordinary sense. Section 1526 (d) of Park’s Code, cited by counsel for plaintiff, is not operative in Liberty County. It is a part of the act of the General Assembly of 1912, which was intended to
“The test to be applied, therefore, in determining upon the right to relief by mandamus, is to enquire whether the party aggrieved has a clear legal right, and whether he has any other adequate remedy, since the writ belongs only to those who have legal rights to enforce, who find themselves without an appropriate legal remedy. In this sense mandamus may be regarded as a dernier resort, to be used when the law affords no other adequate means of relief. And whenever the conditions above noticed coexist, the. right to the extraordinary aid of a mandamus may be regarded as, to that extent, ex debito justitise. To warrant the relief, however, the right whose enforcement is sought must be a complete and not merely an inchoate right.” High’s Extraordinary Legal Remedies (3d ed.), § 10. Por a collection of the decisions of this court with reference to the availability of mandamus as a reipedy see 9 Michie’s Enc. Dig. Ga. R. 163, 164; Eureka Pipe Line Co. v. Riggs, 15 W. Va. 353 (83 S. E. 1020, Ann. Cas. 1918A, 995).