Opinion
19559.
ARGUED JANUARY 16, 1957.
DECIDED FEBRUARY 12, 1957. REHEARING DENIED FEBRUARY 25, 1957.
Mandamus. Before Judge Guess. DeKalb Superior Court. September 25, 1956.
William G. Grant, Fisher, Phillips Allen, T. Charles Allen, for plaintiff in error.
George P. Dillard, W. Dan Greer, contra.
Sutherland, Asbill Brennan, Randolph W. Thrower, James P. Groton, for party at interest not party to record.
1. In this mandamus proceeding against Wheat Williams, as sole Commissioner of Roads and Revenues of DeKalb County, to require him to record on his minutes two contracts which purport to lease certain county property to the plaintiff for a fixed period of time and for a specified amount as annual rent, and where the alleged contracts were in proper form and prima facie valid, no further inquiry as to their validity can be made in the mandamus proceeding; but all other questions respecting their validity must be determined in another action unaffected by the judgment in this case. Malcom v. Aldredge, 208 Ga. 297 ( 66 S.E.2d 750), and the cases there cited.
2. When, as in this case, a sole commissioner of roads and revenues makes a contract for and on behalf of the county, it is his duty to record it on his minutes promptly, and when he fails to do so, mandamus will lie to compel him or his successor in office to perform such official duty, unless the applicant for such relief has with respect thereto been guilty of gross laches or has permitted an unreasonable period of time to elapse before applying to the proper court therefor. Code § 23-1701; Weathers v. Easterling, 153 Ga. 601 (1) ( 113 S.E. 152); Wood v. Puritan Chemical Co., 178 Ga. 229 ( 172 S.E. 557); Wood v. City Board of Plumbing Examiners, 192 Ga. 415 ( 15 S.E.2d 486), and the several cases there cited.
3. There is a legal presumption, until the contrary appears, that a public officer has regularly and properly performed his official duty. Fine v. Dade County, 198 Ga. 655, 663 ( 32 S.E.2d 246). Under the facts of this case, as they appear from the statement following this syllabus opinion, there is clearly no merit in the defendant's contention that the plaintiff, because of its gross laches or unreasonable delay in applying therefor, is not entitled to the relief sought.
4. While, under Code § 64-106, mandamus will not be granted when it is manifest that the writ would, for any cause, be nugatory or fruitless, and while this court will and does take judicial notice of the fact that the defendant Williams is not now the Commissioner of Roads and Revenues of DeKalb County, the judgment excepted to will, for the reasons stated above, be reversed in order that the applicant for the writ may not be estopped thereby. See Northington v. Candler, 211 Ga. 410 ( 86 S.E.2d 325).
Judgment reversed. All the Justices concur.
ARGUED JANUARY 16, 1957 — DECIDED FEBRUARY 12, 1957 — REHEARING DENIED FEBRUARY 25, 1957.
On October 25, 1940, Scott Candler, as sole Commissioner of Roads and Revenues of DeKalb County, by a written contract, leased to Southern Airways Company, a corporation, certain county property known or to be known when completed as the "Camp Gordon Airport," containing approximately 325 acres, together with the improvements thereon and those which were to be placed on it before completion, for a period of fifteen years, beginning from the date of the completion of the airport, and for a monthly rental of $550. The rent for 6 months, or $3,300, was paid in advance by the lessee to the lessor when the lease contract was executed. Paragraph 26 of the contract provides: "In the event that the entire premises known as Camp Gordon Airport shall be taken over by the United States Government or by the State of Georgia for governmental functions so that lessee will be substantially deprived of its rights under this lease, said lease shall be suspended for the period in question, and shall be reinstated at the end of such period and an additional term added to the end of the lease period so that lessee shall be entitled to use of the premises under this lease for a time equivalent to the full lease period, as though there had been no suspension thereof."
On July 1, 1943, the contracting parties amended the original contract in respect to the amount of rent to be paid, when payable, and so as to include other adjacent land. From the date of the original contract to December 28, 1954, the lessee paid to the lessor $11,700 as rent for the leased premises. Before the lessee was placed in possession of the leased property, the United States required and took over exclusive possession of it for a naval reserve aviation base, and has since then and now has possession of it for such use. On the date last mentioned, the lessor by resolution, which was then recorded on the commissioner's minutes, agreed to and did refund to the lessee all amounts paid by it for rent except $1,000. The resolution recites that the $1,000 would be retained by the lessor "as evidence of its (lessee's) good faith and as an initial deposit on any rentals which may accrue."
The original contract and amendment in 1943 were not recorded on the commissioner's minutes, and the lessee brought this mandamus proceeding against Wheat Williams, successor in office to Mr. Candler, to compel their recordation. In addition to the facts stated above, the petition, as amended, alleges: For several years after the lease contracts were executed, no question concerning their validity was raised which would cause the plaintiff to suspect that the lessor's sole commissioner had not recorded them on his minutes as he was required by law to do. In 1955, the defendant Williams decided to repudiate the lease contracts on the ground that they were invalid, and therefore null and void. The plaintiff furnished the defendant with a photostatic copy of the contracts and made a demand on him in writing to record them and, within two weeks after he definitely refused to so record them, this mandamus proceeding was instituted. The plaintiff has never had possession of the leased property; but, on information and belief, alleges that the United States will, within one year, vacate and surrender possession of it to DeKalb County, the owner.
The defendant demurred generally to the amended petition, answered it, and moved to dismiss it on several grounds, one of which is that the defendant should not now be required to record the purported lease contract of October 25, 1940, because of the plaintiff's unreasonable delay and gross laches of nearly sixteen years in making any demand for its record, when the plaintiff knew or in the exercise of proper diligence should have known that it was not recorded. On May 1, 1956, the defendant, pursuant to public notice and after the plaintiff had been duly notified that bids for a lease of the subject property would be received, accepted an offer for a lease of the property from Executive Aviation, Inc., which is for an annual rental much larger than the amount the plaintiff agreed to pay; and if the defendant is now required to record on his minutes the plaintiff's purported lease of October 25, 1940, DeKalb County will be injured and damaged by the plaintiff's long delay and laches, since it will be unable to perform its obligation to Executive Aviation, Inc. The trial judge sustained this ground of the motion and dismissed the petition. The exception is to that judgment.