Echols v. DeKalb County, 55556

Decision Date05 July 1978
Docket NumberNo. 55556,55556
Citation146 Ga.App. 560,247 S.E.2d 114
PartiesECHOLS v. DeKALB COUNTY.
CourtGeorgia Court of Appeals

Wayne M. Purdom, Atlanta, for appellant.

William S. Olsen, James H. Weeks, Decatur, for appellee.

BANKE, Judge.

The appellant, Darnell Echols, sued the appellee, DeKalb County to recover back wages which he claimed he was due. The trial judge granted summary judgment to DeKalb County, and this appeal followed.

Echols worked for DeKalb County as a senior water quality control operator. He alleges that he was promoted and fulfilled the duties of water quality control foreman from July 1974 to May 1975 but never received the corresponding salary increase to which he was entitled. He stated that he repeatedly asked his superiors for the extra pay, but that he was always given some excuse for the delay in payment. On March 12, 1976, Echols notified the DeKalb County Merit Council of his claim by letter. The merit council heard and denied his claim in June 1976. On July 30, 1976, he filed this action against DeKalb County in the superior court.

The DeKalb County Merit System was created in 1956 (Ga.L.1956, pp. 3111-3117). Section 4(b) of the Act authorizes the merit system council "To conduct hearings and render decisions on charges preferred against (county employees) and to hear appeals from any employee who claims to have been improperly dismissed." In this case, Mr. Echols was relieved of his duties as foreman on May 18, 1975, but his employment with the county was not terminated. Thus, the council lacked the authority to render any binding decision on Mr. Echols' complaint.

In bringing his independent suit to recover wages against the county in the superior court, Mr. Echols relied on Deason v. DeKalb County, 222 Ga. 63, 148 S.E.2d 414 (1966). The decision in Deason was based on a finding of an implied waiver of the county's immunity from suit. However, as this court, quoting from Justice Jordan's dissent in Busbee v. Ga. Conference, Am. Assn. of Univ. Professors, 235 Ga. 752, 221 S.E.2d 437 (1975), stated with regard to Code Ann. § 2-3401 (Ga.L.1973, pp. 1489, 1490) (ratified 1974) in Dept. of Human Resources v. Briarcliff Haven, 141 Ga.App. 448, 450-451, 233 S.E.2d 844, 846 (1977): "In other words (because of the 1974 constitutional amendment), it is an entirely new ball game as far as the doctrine of sovereign immunity is concerned. . . . What we do know, and what this court has said in Azizi (Sheley v. Board of Public Education of City of Savannah, 233 Ga. 487, 212 S.E.2d 627) and Revels (Revels v. Tift County, 235 Ga. 333, 219 S.E.2d 445) . . . is that the doctrine now has constitutional status, and applies in my opinion, to any 'suit' involving claims for 'injury' or 'damage' against the state unless and until there is a waiver by Act of the General Assembly. . . . Likewise, other opinions of the courts of this state dealing with the judicial application of the rule prior to the 1974 amendment are not applicable to claims against the state arising since the 1974 amendment." See also Health Facility Investments v. Ga. Dept. of Human Resources, 238 Ga. 383, 233 S.E.2d 351 (1977); C. F. I. Const. Co. v. Bd. of Regents, 145 Ga.App. 471, 243 S.E.2d 700 (1978).

There is no express statutory waiver of the county's (as an arm of the state) sovereign immunity applicable to Mr. Echols' suit in this case. We affirm, therefore, the trial judge's grant of summary judgment to DeKalb County.

Judgment affirmed.

BELL, C. J., QUILLIAN, P. J., and WEBB, McMURRAY, SMITH and BIRDSONG, JJ., concur.

SHULMAN, J., concurs specially.

DEEN, P. J., dissents.

SHULMAN, Judge, concurring specially.

While I am in general agreement with the premise expressed in the second division of the dissent, I feel obliged to take this opportunity to disagree with the first division of the dissent.

The first case cited in the dissent, Goolsby v. Regents of the Univ. System of Ga., 141 Ga.App. 605, 234 S.E.2d 165, has been misapplied, both in the dissent in this case and in the second case cited in the dissent, C. F. I. Const. Co. v. Bd. of Regents, 145 Ga.App. 471, 243 S.E.2d 700. In both instances, Goolsby is quoted as holding: "The doctrine of sovereign immunity is not a bar to the enforcement of constitutional rights. . . ." However, in both instances, the second (and most pertinent) half of the sentence was omitted. The complete sentence, placed in context, follows: "In appellant's second and third enumerations of error, he asserts that even if sovereign immunity attached to the Board of Regents immediately upon the repeal of the 1785 Act, as we have held it did, the doctrine cannot be applied here because the appellant's claims are bottomed on guarantees of the Constitutions of Georgia and the United States. That the enumerations are without merit is clear from the holding in Palmer v. Ohio, 248 U.S. 32, 39 S.Ct. 16, 63 L.Ed. 108: 'The right of individuals to sue a State . . . cannot be derived from the Constitution or laws of the United States. It can come only from the consent of the State.' The doctrine of sovereign immunity is not a bar to the enforcement of constitutional rights; It merely operates to withhold from the courts jurisdiction over the person of the state, without regard for the basis of the suit." Goolsby, supra, 141 Ga.App. p. 609, 234 S.E.2d p. 168. (Emphasis supplied.) C. F. I. Const. Co., supra, and the dissent in this case are in conflict with the holding of this court in Goolsby, supra.

Although I do not approve of continued adherence to the doctrine of sovereign immunity, I feel bound by the decisions of the Supreme Court and pronouncements of the General Assembly cited in the majority opinion and in Goolsby, supra. It is for that reason that I concur in the judgment of the majority.

DEEN, Presiding Judge, dissenting.

I.

I respectfully dissent based upon the authority contained in Goolsby v. Regents of the Univ. System of Ga., 141 Ga.App. 605, 609, 234 S.E.2d 165, 168 (1977), "The doctrine of sovereign immunity is not a bar to the enforcement of constitutional rights" (1st and 14th Amendments free speech rights), and C. F. I. Const. Co. v. Bd. of Regents, 145 Ga.App. 471, 475, 243 S.E.2d 700, 704 (1978), "Such a right is that of eminent domain" (5th Amendment U.S. constitutional right as deprivation of property and Art. I, Sec. III, Par. I of 1976 Ga. Constitution; Code Ann. § 2-301). These rights would be an empty shell if the enforcement thereof did not embrace the concomitant right to sue the sovereign, for the denial of this fundamental procedural due process is no less as valuable a constitutional right under the deprivation of "liberty" and "property" of the 14th Amendment than the 1st and 5th Amendments. These two cited cases involve dismissal of a complaint for failure to state a claim. The case under consideration points up a deprivation of 5th and 14th Amendment procedural and substantive constitutional rights. Therefore, I would reverse the trial court's grant of summary judgment.

II.

The judicially adopted or created antiquated doctrine of sovereign immunity should be reviewed and substantially or partially abrogated. See "A Call for Action," by G. Conley Ingram and Jay D. Bennett, 14 Ga. State B.J., April 1978, p. 152, stating: "Many writers have been quick to point out the inapplicability of the monarchical, semi-religious tenet that 'the king can do no wrong' in a republic that takes pride in being 'a government of laws, not men.' "

I concur with the wisdom expressed by Chief Justice Nichols in his dissent contained in Crowder v. Dept. of State Parks, 228 Ga. 436, 441, 442, 444, 185 S.E.2d 908, 912, pointing out "government has long since waived such immunity," and applying the constitutional mandate: " 'Protection to person and property is the paramount duty of government, and shall be impartial and complete,' but we have the provision of the Code that: 'For every right there shall be a remedy, and every court having jurisdiction of the one may, if necessary, frame the other.' Code § 3-105." " 'The common law of force prior to May 14, 1776, was adopted as the law of this State by the act of February 25, 1784, except where modified by statutes or not adjusted to the conditions or system of government existing here.' Harris v. Powers, 129 Ga. 74(2), 58 S.E. 1038, 12 Ann.Cas. 475. See also Alexander v. Dean, 157 Ga. 280, 283, 121 S.E. 238." Crowder v. Dept. of State Parks, supra, p. 439, 185 S.E.2d p. 911.

Neither the Constitution of Georgia nor any statute prohibits an individual or other entity from suing the state without its consent. Sovereign immunity is a hybrid form of inherent power or divine rights of kings, the bureaucracy, the despot or ruling power. There is a sharp distinction between, on the one hand, inherent rights, immunity and power of the sovereign, whether it be the judicial, the legislative or the executive, and, on the other hand, inherent, fundamental, natural creator-endowed rights and power contained in the people. When our constitutional republic was set forth our founding fathers rejected the recognition of the inherent power of sovereign immunity by making no provision for a king. More importantly it was unanimously recognized that all inherent, natural and fundamental rights and powers had 100 percent originated in the people as creatures of an omnipotent creator. This had been referred to as the Ciceronian concept perpetuated as "immutable because it could not be repealed" by John of Salisbury, Judge Henry Bracton, and Chief Justice Edward Coke who said: "Even the king was subject to the higher law." John Locke and Thomas Hobbes debated this concept. Coke and Locke called this higher law in the people as a safeguard from dangers from sovereign power. James Otis, Sam Adams, Patrick Henry, John Adams, Thomas Jefferson, James Wilson and Alexander Hamilton not only...

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    • United States
    • Georgia Court of Appeals
    • January 8, 1981
    ...or " damage" against the state unless and until there is a waiver by Act of the General Assembly...' " Echols v. DeKalb County, 146 Ga.App. 560, 561, 247 S.E.2d 114 (1978). Appellant has cited us to no enactment of the General Assembly waiving the immunity of the Dougherty County School Sys......
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