McGinty v. Gormley

ON REHEARING.

Section 13-1604 of the Code of 1933 is in part as follows: “Any person shall have the right to submit to the superintendent of banks any facts which under the law would authorize the forfeiture of the charter of a bank, or any facts which would authorize the liquidation of a bank, or the appointment of a receiver therefor, and on such submission being made, it-shall be the duty of the superintendent of banks to investigate, .and if on such investigation he ascertains that the facts are, such .as will justify action for forfeiture of the charter, or for the liquidation of the bank, or for the appointment of a receiver, it shall be the duty of the superintendent to take appropriate action in the premises.” It is contended that the complaint made by the plaintiff in error to the superintendent was at least sufficient to require the superintendent “to investigate,” but that he took 'absolutely no action. While as against an officer having a discretion the writ of mandamus may, in a proper case, be issued for the purpose of setting him in motion, without further controlling or interfering with his action (Richmond County v. Steed, 150 Ga. 229, 232, 103 S. E. 253), it “is not an appropriate remedy to compel a general course of official conduct for a long series of "continuous acts to be per*650formed under varying conditions.” Bahnsen v. Young, supra. The latter rule, and not the former, applies in the present case. Furthermore, as suggested in the original decision, the petition was properly dismissed because the bank was not made a party defendant. In Walton v. Booth, 151 Ga. 452, 455 (107 S. E. 63), the application for the writ of mandamus involved the validity of an election, and persons claiming to have been elected were not made parties defendant. It was held that this “was sufficient reason for the refusal of the court to make the mandamus absolute.”

Judgment adhered to.

All the Justices concur, except Beclc, P. J., absent because of illness.