Opinion
13609.
MARCH 14, 1941.
Petition for mandamus. Before Judge Davis. DeKalb superior court. November 14, 1940.
Fraser, Irwin Latimer, for plaintiff.
Ellis G. Arnall, attorney-general, and Herschel E. Smith, assistant attorney-general, for defendants.
In a previous mandamus action the plaintiff's recovery of his salary as a director of the Department of Industrial Relations through March 25, 1937, was affirmed by this court. Stanley v. Sims, 185 Ga. 519 ( 195 S.E. 439). The present suit seeks to recover his salary as such director after March 25, 1937, for the remainder of a four-year term from September 29, 1936. The petition shows, that his appointment was never confirmed by the Senate, but was submitted to the Senate for confirmation on January 13, 1937, which was during the ten-day organization period of the General Assembly; that his name was returned to the Governor because the Senate was without authority of law to consider the same during the organization session; that his name was not submitted to the Senate during the regular 1937 session thereof; that on March 25, 1937, an act was approved changing the name of the Department of Industrial Relations to that of Industrial Board, section 5 of which act provides that "the board herein created shall have all the power and authority heretofore vested in the Department of Industrial Relations for the administration of the workmen's compensation act;" and that on February 2, 1937, the Governor appointed Arlie D. Tucker to the office held by petitioner, and this appointment was submitted to and confirmed by the Senate on March 25, 1937. The plaintiff excepted to the judgment sustaining the defendants' general demurrer and dismissing the action. Held, that the petition alleges no cause of action, because: (a) The petitioner's ad interim appointment terminated when not confirmed at the next session of the Senate. Code, § 54-101; Kaigler v. Floyd, 187 Ga. 441 ( 200 S.E. 784). See Britton v. Bowden, 188 Ga. 806 (3) ( 5 S.E.2d 47). (b) The office to which the plaintiff was appointed was abolished by section 2 of the 1937 act referred to in the petition. Ga. L. 1937, p. 230.
Judgment affirmed. All the Justices concur.