This cause comes on to be further heard upon the return of the respondent to the alternative writ, and upon relator's motion for peremptory writ, the return notwithstanding.
The only question raised by respondent's return which was not considered on the motion to quash the alternative writ, which motion has been denied, is presented by certain averments in the return to the effect that acting under that clause of the Act providing that such inspectors shall each hold office until such time as the Governor may deem proper to discontinue the services of such Inspector, "or until such time as the Commissioner of Agriculture may advise the Governor either that the services of such Inspector are not satisfactory, or that the services of such Inspector are no longer required by the Bureau of Inspection," the Commissioner of Agriculture on the 21st day of January, 1928, advised the Governor that the services of the relator were not satisfactory, and that he, the Commissioner of Agriculture, would not after February 1, 1928, approve any other salary or expense vouchers for the relator. We have held, however, that the services of relator could not be discontinued in that manner. The return further avers that the relator did not act or render any service as an Inspector at any time during the period from February 1st to June 24th, 1928, the date on which the relator resigned. Since, however, the relator must perform his duties under *Page 230 the directions of the Commissioner of Agriculture and since the Commissioner of Agriculture refused to recognize relator as an Inspector after January 31, 1928, the relator was thereby prevented from performing such services. It is not shown nor alleged that the relator declined or refused to perform the services of an Inspector during that period. Under those circumstances, the fact that relator did not perform the services of an Inspector during the period in question is not such an abandonment of his office as will defeat his right to receive the salary thereof until the time when his services were dispensed with according to law, which was on June 24, 1928.
It is therefore ordered that the peremptory writ issue as prayed.
ELLIS, BROWN AND BUFORD, J. J., concur.
TERRELL, C. J., AND WHITFIELD, J., dissent.