Opinion
24134.
SUBMITTED JUNE 12, 1967.
DECIDED JUNE 22, 1967.
Injunction. Taylor Superior Court. Before Judge Land.
H. Thad Crawley, for appellant.
Garland T. Byrd, Dan S. Beeland, for appellee.
1. The order sustaining the general demurrer on the date of the hearing on the rule nisi, and prior to the appearance day of the case, was not void. Reardon v. Bland, 206 Ga. 633 (1) ( 58 S.E.2d 377); Reeves v. DuVal, 214 Ga. 630 (1) ( 106 S.E.2d 797).
2. "It is the general rule that a court of equity has no jurisdiction to enjoin the removal of a public officer." Hill v. Johnson, 214 Ga. 417 ( 105 S.E.2d 309); Stanford v. Lynch, 147 Ga. 518 (1) ( 94 S.E. 1001); Moore v. Dugas, 166 Ga. 493 (5) ( 143 S.E. 591); Hayes v. City of Dalton, 209 Ga. 286, 292 ( 71 S.E.2d 618). The petition did not allege any acts by the defendant seeking by force to interfere with the petitioner's possession of the office of tax assessor (see Allen v. Wise, 204 Ga. 415 ( 50 S.E.2d 69), and cases cited), but only the sending of a letter to him notifying him of the termination of his office, which the petitioner asserts is legally insufficient to terminate his office. The petition alleges no facts authorizing a court of equity to enjoin the defendant from "carrying out the termination of petitioner's appointment" as tax assessor.
3. The petitioner sues for damages because of a letter signed by the defendant, which the petitioner asserts is libelous. Even if this letter should be held to be libelous, there are no allegations that it was published, except the mere reference to the "publication of said letter." The letter was addressed to the petitioner, and it may be assumed from the allegations that it was sent to him. "The publication of the libelous matter is essential to recovery." Code § 105-701. In order to recover for a libel, the libelous matter must be communicated to some person other than the petitioner. McCravy v. Schneer's, 47 Ga. App. 703 ( 171 S.E. 391).
4. The amount which the petitioner claims is due him for his participation in a board meeting is a charge against the county, and not against the defendant in his individual capacity.
5. The petition failed to state a cause of action either for injunction or damages, and it was not error to sustain the general demurrer and dismiss the petition.
Judgment affirmed. All the Justices concur.
SUBMITTED JUNE 12, 1967 — DECIDED JUNE 22, 1967.
Gann Nelson brought a petition against Walter Wainwright, alleging that: The petitioner is a duly qualified and acting tax assessor, and is now the sole member of the Board of Tax Assessors of Taylor County. The defendant is a member of the Board of Roads and Revenue of Taylor County, and is acting chairman thereof. The defendant "under color of his office has signed and caused to be sent a letter dated February 21, 1967, purporting to terminate and remove your petitioner from his office as a member of the Board of Taylor County Tax Assessors," a copy of the letter being attached as an exhibit to the petition. The defendant, by signing and sending the letter, "knowingly acted alone as an individual." The "publication of said letter and the fact of his termination of office has caused and does now cause petitioner great humiliation, pain and suffering and has injured and is now injuring the petitioner's reputation in the community where he lives, and has injured and is injuring plaintiff personally, financially, politically, and socially and tends to destroy plaintiff's personal, financial, political and social standing throughout said county." The letter was prompted by actual malice on the part of the defendant, and the petitioner is entitled to exemplary or punitive damages in the amount of $10,000. On February 16, 1967, the petitioner participated in a board meeting of the tax assessors, and the compensation due him of $10 has not been paid. The action of the defendant in stating in the letter that the petitioner's office is terminated at a date prior to this board meeting deprives the petitioner of his compensation, and he is entitled to actual damages in the sum of $10. The defendant is interfering with the duties of the petitioner as an assessor, and the petitioner has no adequate remedy at law for the damage done, and threatened to be done, by the defendant's unauthorized interference with the petitioner's duties.
The petition prayed for process and rule nisi; for verdict and judgment for the sums alleged as damages; that the defendant be "permanently enjoined from carrying out the termination of petitioner's appointment as Tax Assessor of Taylor County, Georgia either officially or unofficially"; for temporary injunction; that the defendant be enjoined from using county funds to defend the action; and for other relief.
The letter of February 21, 1967, attached to the petition, was addressed to the petitioner, and was signed by the defendant as Chairman of the County Commissioners of Taylor County. The letter stated that the Taylor County Commissioners at their last regular meeting appointed a new board of tax assessors to replace the present board. It stated that the action was taken, primarily, because the last two grand juries had recommended it, and it expressed the thought of the commissioners that the present board had served a long time and would probably be glad to be relieved of their responsibility. It expressed appreciation for the services of the members and stated that the new board would assume all duties "immediately."
The trial judge sustained the general demurrer of the defendant to the petition, and the appeal is from this judgment.