Swords v. Walker , 141 Ga. 450 ( 1914 )

Atkinson, J.

(After stating the foregoing facts.)

If in any case the writ of mandamus should issue at the in stance of citizens and taxpayers to compel county commissioners to institute a suit for the recovery of money alleged to have'been illegally paid out by the officers of the county, it should not do so unless it clearly appears that the writ should be issued. “Mandamus will not be granted when it is. manifest that the writ would> for any cause, be nugatory or fruitless.” Civil Code, § 5443. The case was tried by the judge, who passed on the law and the facts as presented by the pleadings, without the introduction of evidence. The purpose of the mandamus sought by the complaining tax1 payers was to compel the institution óf a suit against former county commissioners, the treasurer, and a trustee of the agricultural college, to recover money alleged to hav.e been illegally paid to the trustees of the college, and used hy them in the construction of buildings, more than six years prior to the filing of the application for'mandamus. The basis of complaint is the alleged conversion of county funds. The defendants derived no benefit from the money which the plaintiffs seek to have restored to the treasury, and all of their acts and conduct in respect thereto were of general public notoriety. For more than four years prior to the filing of the application for mandamus a majority of the county commissioners were the successors of those who participated in the appropriation of the money to the college. Two of the present defendants were members of the board of commissioners when the appropriation was made, and they, with the other defendants in the present action, are urging the statute of limitations. Even if it be conceded that the county officers had no authority to make the appropriation complained of, it has been ruled that a suit by a county to recover money illegally drawn from its treasury and misapplied must be brought within four years after the accrual of the cause of action. Hunt v. Burk, 22 Ga. 129; Cook v. Commissioners of Houston County, 62 Ga. 223; Civil Code, §§ 4362, 4371. In the last-cited case an exception was made to the general rule as to the time when the statute of limitations began to run in the case of a sheriff in office. In such ease it was held that the statute began to run from the expiration of his term, and not from the time of the illegal withdrawal of the funds from the treasury. The case at bar does not fall within the exception made in that case. More than four years prior to filing of the application for mandamus a majority of the county commissioners have been other than those who participated in the grant of the order appropriating the money. There is no pretense that any one of the persons against whom the action is sought was guilty of any actual fraud or concealment, or did anything to deter the county from bringing its action. Nor is there any contention that the plaintiffs or any other person was not fully advised of the various acts now complained of. Indeed the record shows that every act of theirs was given the utmost publicity, by consideration in the grand jury, publication in the newspapers of the county, and otherwise. It might be said that the statute of limitations is a personal plea, and that it could not be anticipated that such plea would be made to the action when brought. A sufficient answer to such contention is that two of the present commissioners of the county are also sought to be made defendants in the suit that it is contended should be brought, and they are making that point in the present proceeding. It is unnecessary to deal with other questions made in the case, as the county would be barred of its action. There was no error in refusing the writ. Judgment affirmed.

All the Justices concur.