Opinion
16760.
OCTOBER 10, 1949.
Mandamus. Before Judge Nichols. Walker Superior Court. May 26, 1949.
Fariss Fariss and Shaw Shaw, for plaintiff in error.
Gleason Painter, contra.
1. The provisions of the Voters' Registration Act (Ga. L. 1949, pp. 1204-1225), that the compensation of registrars and other necessary expenses shall be paid as other county bills are paid, from the county treasury, do not conflict with the requirements of the act creating the office of Commissioner of Roads and Revenue of Walker County (Ga. L. 1939, pp. 751-765). Under section 12 of the latter act, the Commissioner of Roads and Revenue is specifically charged with the duty of "examining, settling, and allowing all claims against the county, according to law."
2. "While mandamus will lie to compel performance of official acts where the duty to discharge them is clear, it will not lie to compel a general course of conduct and the performance of continuous duties." Richter v. Jordan, 185 Ga. 39 ( 193 S.E. 871), and cases cited.
( a) Under the foregoing rules of law, the County Commissioner of Walker County could not be required to approve for payment alleged items of expense to be incurred under the Voters' Registration Act.
( b) The petition for mandamus having alleged that the Board of Registrars had actually performed some services, they were entitled to the compensation provided by law for the services rendered. Howell v. Bankston, 181 Ga. 59 (1) ( 181 S.E. 761); Leverette v. Leonard, 192 Ga. 359 ( 15 S.E.2d 421); Franklin v. Harper, 205 Ga. 779 (7) ( 55 S.E.2d 221).
( c) The provision of the Voters' Registration Act for the payment of specific expenses by the counties, "and all other necessary expense in connection with the registration of voters," is insufficient to charge the county with attorneys' fees in an action for mandamus against the County Commissioner of Walker County, since ordinarily the services of an attorney must be paid for by the client who employs him. Code, § 20-1404; 14 Am. Jur. 38, § 63; 35 C. J. S., p. 207.
( d) The trial court erred in making the mandamus absolute for items of expense not actually incurred and examined and approved by the county commissioner.
Judgment affirmed in part and reversed in part. All the Justices concur.
No. 16760. OCTOBER 10, 1949.
F. L. Brock and others, as members of the Board of County Registrars of Walker County, filed in Walker Superior Court, against Fay B. Murphey Sr., Commissioner of Roads and Revenue, a petition for mandamus, which as amended alleged substantially the following: Pursuant to section 8 of the Voters' Registration Act (Ga. L. 1949, p. 1204), the petitioners were duly sworn and commenced the performance of their official duties. The defendant, as Commissioner of Roads and Revenue, is in charge of all funds of the county. He is expressly prohibited from drawing checks on the county funds unless the funds are then on deposit in the treasury of the county. As of May 26, 1949, he had on hand in the cash-basis fund, which fund is not levied for any specific purpose and may therefore be used for the payment of any lawful county obligation, the sum of $9129.89, with no outstanding checks against the same, and the fund may be used legally for the purpose of administering the Voters' Registration Act. It is the duty of the petitioners to commence immediately the registration of all citizens of the county desiring to exercise their franchise as electors. There are approximately 18,000 registered electors on the present voters' list of Walker County; and, in addition thereto, many other citizens will apply for registration, and the task of completing the registration list within the time required by the act will require the petitioners to remain in constant session until June 1, 1950. The anticipated amount for carrying out the provisions of the act will be $22,620, including $15,600 for necessary clerical assistance and equipment. By section 47 of the registration act, the defendant is required to pay all items of expense lawfully incurred in the administration of the act, and such payments must be made in the usual manner in which the county bills are paid. The petitioners have worked four days in their official capacity as county registrars, and have presented a bill for their services to the defendant, but he has refused to pay the bill, and has advised the petitioners that he is not going to pay the same, or order the supplies necessary to carry out the duties imposed upon the petitioners by the act. A reasonable attorney's fee for the filing and prosecution of the present mandamus proceeding in the superior court is $250; and, in the event the defendant takes the case to the Supreme Court, an additional attorney's fee of $250 will be incurred, and these charges are legitimate items of necessary expense and should be paid by the defendant as such. The prayers were: that process issue; that the court issue a mandamus nisi requiring the defendant to show cause why mandamus should not be issued requiring him to pay the lawful claims of the petitioners already presented to him, as well as their future claims for compensation; that the defendant be required further to pay all lawful expense incurred by the petitioners in the performance of their duties, including necessary clerical assistance and equipment; and that the petitioners be given general relief.
Demurrers were interposed by the defendant to the petition, as hereinafter dealt with in the opinion. The defendant also filed an answer admitting some of the allegations, and averring among other things substantially the following: The total number of electors who will qualify under the registration law will not exceed 12,000, and the task of completing the registration list within the time provided in the act will not require the amount alleged for clerical assistance and equipment, and will not require the registrars to remain in constant session until June 1, 1950. While the defendant is required by the registration act to pay for necessary expenses in carrying out the provisions of the act, he is not obligated to pay all items of expense incurred by the registrars; and he has informed them that their requisition for supplies will not be honored, and has refused to make payment for the reason that the anticipated expense incident to the registration of voters is grossly excessive, many items thereof are unnecessary, and the act can be complied with and the voters registered at a much lower cost.
The trial court sustained the petitioners' demurrers to the answer and overruled the defendant's demurrers to the petition as amended.
Upon the trial of the case before the judge without a jury, which occurred on the same day the demurrers were passed upon, he entered a judgment granting a mandamus absolute as prayed.
The defendant in a direct bill of exceptions excepted to the judgment granting a mandamus absolute and also assigned error on the aforesaid rulings on demurrer.