Cantrell v. Board of Trustees of Emp. Retirement System of Georgia

• Decision Date: 23 June 1975
• Docket Number: 3,2,No. 50243,Nos. 1,50243,s. 1
• Citation: 218 S.E.2d 97,135 Ga.App. 445
• Court: Georgia Court of Appeals
• Parties: C. T. CANTRELL, Jr. v. BOARD OF TRUSTEES OF the EMPLOYEES' RETIREMENT SYSTEM OF GEORGIA

Page 97

218 S.E.2d 97

135 Ga.App. 445

C. T. CANTRELL, Jr. v. BOARD OF TRUSTEES OF the EMPLOYEES' RETIREMENT SYSTEM OF GEORGIA.

No. 50243.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

June 23, 1975.

Rehearing Denied July 16, 1975.

Harrison & Garner, G. Hughel Harrison, Lawrenceville, for appellant.

Arthur K. Bolton, Atty. Gen., Eleanor H. Ridley, Staff Asst. Atty. Gen., Carl C. Jones, Asst. Atty. Gen., Atlanta, for appellee.

STOLZ, Judge.

The judgment of the Fulton Superior Court and that of the Board of Trustees of the Employees' Retirement System of Georgia, must be affirmed. The case is a most difficult one, involving a conscientious employee who desires to continue to work rather than being involuntarily retired due to disability, as thought best by his employer. In an age when so many able-bodied persons seem to prefer not to work if money can be had any other way, cases such as this impose difficult and unpleasant responsibilities upon those required to apply the rules of law. The resolution of this case turns on a matter of law. The factual issue has already been determined by the Board of Trustees of the Employees' Retirement System of Georgia. This court cannot substitute its judgment for theirs on questions and issues of fact.

1. It is urged that Cantrell v. State of Ga., 129 Ga.App. 465(2), 200 S.E.2d 163, aff. 231 Ga. 704, 203 S.E.2d 493, established the law of the case for the case before us. We disagree; the present case is not the same case as that presented in Cantrell, supra. In the prior case, Cantrell sought relief through the State Personnel Board from a decision by the Board of Trustees of the Retirement System that he was disabled. This court ruled that Mr. Cantrell was improperly retired because he was not given a personal physical examination. The Board of Trustees of the Employees' Retirement System of Georgia was not a party to that case. Following the decision in Cantrell, supra, Mr. Cantrell was reinstated to his job, paid back wages, and then this case began with another application to retire the employee, this time using the guidelines from the first case that he be given a personal examination. The 'law of the case rule' can only apply to the same case and is not applicable in the case sub judice. See Northwestern Mut. Life Ins. Co. v. Suttles, 201 Ga. 84, 97, 38 S.E.2d 786 and cits.

Moreover, we disapprove the language of the first sentence in Division 2 of Mr. Cantrell's first appeal to the court (Cantrell v. State, 129 Ga.App. 465, 467, 200 S.E.2d 163, 166, supra) to the effect that, 'Plaintiff could have appealed from the State Retirement Board's adverse ruling by certiorari to the superior court . . ..' This statement is pure dictum. The 'State Retirement Board' was not a party to that case. Further, the dictum quoted is erroneous, as will be shown in Division 2 hereof. The cases cited in support of the dictum do not support the statement made. Scott v. Undercofler, 108 Ga.App. 460, 133 S.E.2d 444, Schaefer v. Clark, 112 Ga.App. 806, 146 S.E.2d 318 and Gunther v. Gillis, 114 Ga.App. 54, 150 S.E.2d 309, all involve writs of certiorari from the State Personnel Board to the superior court involving the discharge of an employee. The State Personnel Board and the Board of Trustees are not the same. See Code Ann. § 40-3509 (Ga.L.1972, pp. 1015, 1024) (State Personnel Board); Code Ann. § 40-3507 (Ga.L.1972, pp. 1015, 1023) (Employees' Retirement System). The State Personnel Board is specifically excluded from the Administrative Procedure Act (Code Ann. § 3A-102(a); Ga.L.1964, pp. 338, 340; 1965, pp. 283, 284-286) while that subsection of the Act defines 'agency' as 'each State board, bureau, commission, department, activity or officer authorized by law expressly to make rules and regulations or to determine contested cases except . . .' Code Ann. § 40-2506 (Ga.L.1949, pp. 138, 150, as amended) defines the general duties, organization and composition of the Board of Trustees of the Employees' Retirement System of Georgia. Code Ann. § 40-2523 (Ga.L.1953, pp. 323, 324, as amended) gives the board of trustees authority to adopt tables and rates, including rules and regulations. Code Ann. § 40-2505(3)(b) (Ga.L.1949, pp. 138, 146, as amended) provides for disability retirement of an employee in application to the board of trustees.

The 'law of the case' rule is simply inapplicable to the case sub judice.

2. The writ of certiorari to the superior court does not lie from action by the Employees' Retirement System of Georgia. Art. VI, Sec. IV, Par. V of the Constitution of Georgia (Code Ann. § 2-3905) provides that the superior courts 'shall have power to correct errors in inferior judicatories by writ of certiorari, which shall only issue on the sanction of the Judge, and said courts, and the judges thereof shall have power to issue writs of mandamus, prohibition, scire facias, and all other writs that may be necessary for carrying their powers fully into effect, and shall have such other powers as are, or may be conferred on them by law.'

Based on the foregoing constitutional provision, Code § 19-101 provides, 'The writ of certiorari shall lie for the correction of errors committed by justices of the peace, corporation courts or councils, or any inferior judicatory, or any person exercising judicial powers, including the ordinary, except in cases touching the probate of wills, granting letters testamentary and of administration; . . .'

The question then becomes: Is the Board of Trustees of the Employees' Retirement System of Georgia such a body as referred to in Code § 19-101? We hold that it is not.

'In determining whether or not a proceeding be judicial in character, the question hinges not on whether the parties at interest were in fact given opportunity to be heard, since an officer cannot clothe himself with unauthorized judicial powers by mere voluntary compliance with the forms of judicial procedure, but the test is whether the parties at interest had a right under the law to demand a trial in accordance with judicial procedure.

'If a person or tribunal has the right under proper delegated authority to act in a judicial capacity, the character of such a judicial procedure, when had as prescribed, is not impaired because under the law such tribunal might have had the alternative right to act ex parte without a trial, but it refused to exercise such right. . . . (Cits.)' South View Cemetery Assn. v. Hailey, 199 Ga. 478, 481, 34 S.E.2d 863, 866.

In Southeastern Greyhound Lines v. Georgia Public Service Commission, 181 Ga. 75, 181 S.E. 834, the Court of Appeals certified a question to the Supreme Court, the essence of which is: Does the writ of certiorari lie from a decision by the Public Service Commission revoking and canceling a certificate of public convenience issued to a motor common carrier because, in the opinion of the commission, the evidence adduced before the commission at a hearing showed that the carrier had abandoned passenger service along the route in question? In resolving this issue and answering the question, the Supreme Court, in a comprehensive opinion, stated: 'From the question propounded by the Court of Appeals, we understand that the answer sought, as to the applicability of the writ, is as to a proceeding wherein the Public Service Commission has revoked a certificate of public convenience and necessity because, in the opinion of the commission, a motor common carrier has abandoned passenger service along a certain highway. If, therefore, in the hearing, pursuant to which the certificate was revoked, the commission was 'exercising judicial powers,' it would seem that it would lie. But if the Public Service Commission, in the circumstances suggested, was not exercising judicial powers, certiorari would not lie to review the finding of the commission. 'The writ of certiorari lies to correct errors or restrain excesses of jurisdiction of inferior courts and officers acting judicially only. It will, therefore, not be issued to officers whose functions and duties are ministerial, executive or legislative, and not judicial.' Mechem on Public Offices and Officers, p. 666, § 1001. 'The fact that a public agent exercises judgment or discretion in the performance of his duty does not make his action or his functions judicial.' Id. p. 668, § 1005. See, also, Daniels v. Commissioners of Pilotage, 147 Ga. 295, 93 S.E. 887; City of Atlanta v. Blackman Health Resort, Inc., 153 Ga. 499, 113 S.E. 545; Bryant v. Board of Education of Colquitt County, 156 Ga. 688, 119 S.E. 601. It is well settled that, in determining the nature of the action of public agents, the organic law and the constitutional divisions of authority, legislative, executive, and judicial, must be kept in mind . . . We address ourselves to the applicability of the writ of certiorari. If in a given case the commission should act beyond its powers or capriciously or fraudulently, that is another matter. The courts of equity, as stated in the Degge case, supra (Degge v. Hitchcock, 229 U.S. 162, 33 S.Ct. 639, 57 L.Ed. 1135) are always open for the redress of wrongs upon a proper occasion, but what we here announce is that we will not by construction broaden the scope of the writ of certiorari, and especially in those circumstances where it is sought to review the finding of a tribunal acting, not in a judicial capacity, but as a proper and lawful medium for safeguarding and protecting what is the paramount object of its creation, the interest and welfare of the public in the use and maintenance of its highways. In such a consideration the benefit to a particular licensee is only incidental, and the certificate is expressly declared by the statute itself to confer no vested right. The investigation by the commission was to determine, in the paramount interest of the public in the use and enjoyment of its highways, whether or not the holder of the certificate had abandoned the...