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UNDERCOFLER, State Revenue Commissioner v. SCOTT.
Mandamus. Fulton Superior Court. Before Judge Moore.
DUCKWORTH, Chief Justice.
1. The amended petition showing that the Court of Appeals in Scott v. Undercofler, 108 Ga. App. 460 (133 SE2d 444), had held that this employee had been illegally dismissed and all discharge proceedings against him were a mere nullity, and that the Revenue Commissioner had refused to re-instate him with all rights and benefits accruing to him, although the exhibits attached show he had been re-employed and reassigned and had resigned, alleges a cause of action for some of the relief sought although it shows he is not entitled to re-employment or further compensation after the resignation.
2. The salary due and unpaid being definite and certain and past due, and demand for payment having been made and refused, the order to pay interest thereon was legal and proper.
Olon E. Scott filed a petition for mandamus against Hiram E. Undercofler, individually and as Commissioner of the State Department of Revenue and others alleging that he had been illegally dismissed as an employee of the Department of Revenue by the Revenue Commissioner as so held by the Court of Appeals in Scott v. Undercofler, 108 Ga. App. 460 (133 SE2d 444), which held that his notice of discharge was insufficient and all discharge proceedings thereafter were a nullity; that the State Merit System of Personnel Administration had advised him that the Court of Appeals decision was self-executing and he would hear further from the Department of Revenue about his reinstatement; that he was later re-employed but not re-instated, and he now seeks mandamus against the Commissioner of Revenue requiring him to re-instate him to his rightful position with "all and every right, remuneration, and benefit accruing from the date of his dismissal to the date of re-instatement." The allegations show the salary due him, and the various items of communication between him and the various State authorities, seeking re-instatement, are attached as exhibits, all of which he alleges shows his due diligence and the refusal of the Revenue Commissioner to re-instate him after the final judgment of the Court of Appeals. He prayed for mandamus nisi to issue and for mandamus absolute after a hearing requiring the defendant Undercofler, in substance, to re-instate him to his original position, together with all emoluments, benefits and rights due the petitioner, including back salary, less any deductions required by law, and all retirement funds, social security and seniority rights, and credit for annual and sick leaves, attorney fees for bringing this action, and any and all other emoluments of office, including interest on past due indebtedness, and any other and further relief to which he is entitled.
1. The general rule is that a writ of mandamus may issue against officials to compel due performance of official duties. Hart v. Head, 186 Ga. 823 (199 SE 125); Harmon v. James, 200 Ga. 742 (38 SE2d 401). And mandamus lies against an officer to require the performance of a clear legal duty. Lewis v. Gay, 215 Ga. 90 (109 SE2d 268); Lumpkin County v. Davis, 185 Ga. 393 (195 SE 169). Likewise, persons holding public office may be required by mandamus to perform a continuing duty which their predecessors in office either refused or failed to do. Weathers v. Easterling, 153 Ga. 601 (113 SE 152); Citizens Bank of Folkston v. Newton, 180 Ga. 860 (181 SE 171).
Under Code Ann. 92-8413 (Ga. L. 1937-38, Ex Sess., pp. 77, 85), the Revenue Commissioner is entitled to employ, discharge and fix salaries and compensation of employees in his department within the limitations of the appropriations as he may deem proper in order to discharge the responsibilities incident to the administration of the State tax system. However, the creation of the State merit system (Code Ann. Ch. 40-22; Ga. L. 1943, pp. 171, 177) and the bringing of this department into the system (Code Ann. 40-2239; Ga. L. 1950, p. 417) has by implication changed the above law, but he is still authorized to pay all salaries and expenses of the office and to call for the necessary appropriations to do so. Code Ann. 92-8416. Further, under the merit system he shall promptly comply with any order issued as the result of an appeal of any dismissed employee. Code Ann. 40-2208 (Ga. L. 1943, pp. 171, 176).
Counsel for the Commissioner strongly insists that the employee should have brought this action against the Merit System Board or Council and not against the Commissioner, and that he has not proceeded administratively through channels. But the ruling of the Court of Appeals in Scott v. Undercofler, 108 Ga. App. 460, supra, that the discharge proceedings of Scott were a mere nullity, in effect, is a ruling that Scott has never been discharged and was an employee of the department until his resignation as shown by the petition after he was re-employed. Further, since the letter from the Merit System Director advised him that he could expect the Commissioner to re-instate him, and since the allegations show that he was re-employed although not re-instated dispenses with any necessity of the petitioner now proceeding through channels to obtain a formal order of re-instatement. Thus, under the authority of Board of Educ. of Richmond County v. Young, 187 Ga. 644 (1 SE2d 739), and Morman v. Bd. of Educ. of Richmond County, 218 Ga. 48 (126 SE2d 217), the petition alleges a cause of action for some of the relief sought although Scott can not be fully re-instated since his petition alleges he has resigned.
The alleged salary or compensation claimed due in this instance is liquidated and certain. See Housing Authority of City of Carrollton v. Ayers, 211 Ga. 728 (88 SE2d 368); McCallum v. Bryan, 213 Ga. 669 (100 SE2d 916). And it is not a claim which is unliquidated, unascertained or doubtful as in Powell v. Hansard, 206 Ga. 505 (57 SE2d 677). Whether the Court of Appeals was right or wrong in the decision rendered, this employee is entitled to the emoluments of the position which he held until his resignation. Therefore, the court did not err in overruling the general demurrers thereto.
2. The remaining assignment of error complains that the defendant in error was not entitled to interest on the salary awarded him. All liquidated demands bear interest from the time the party shall become liable and bound to pay. Code 57-107, 57-110. We are not concerned here with the amount of interest since no brief of evidence was brought up in the record and since the final judgment is not excepted to as to the amount awarded, but we are required only to rule whether or not interest could be awarded legally. Counsel for the Commissioner insists that no interest could be due because no contract exists and there is no statutory authority therefor, citing Best v. Maddox, 185 Ga. 78 (194 SE 578). The Best case reasons that the right of a judge of the superior court to his salary arises under the Constitution of the State and not by contract, hence he was not entitled to interest thereon. Likewise the court based its decision on Holtzclaw v. Russ, 49 Ga. 115 (3), which states that the compensation provided a public officer could not draw interest. Neither of these cases is full-bench, and we will not follow this reasoning because it is not binding on this court and is unsound. There is a definite contractual relation between every employee and employer whether the employee is a public officer or not. Thus the employee here being entitled to and having been denied payment of his salary and having made demand therefor which was refused, the court did not err in awarding interest thereon.
Since there is no merit in the assignments of error, the lower court did not err in holding the employee was entitled to all benefits accruing up to his resignation and finding same to be in a definite amount, including interest.
Judgment affirmed. All the Justices concur.
Olon E. Scott, contra.
Eugene Cook, Attorney General, Louis F. McDonald, Assistant Attorney General, for plaintiff in error.
Friday May 22 21:57 EDT

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