Ex parte Board of School Com'rs of Mobile County

• Decision Date: 25 April 1935
• Docket Number: 1 Div. 869
• Citation: 161 So. 108,230 Ala. 304
• Parties: Ex parte BOARD OF SCHOOL COM'RS OF MOBILE COUNTY. v. RAIN. DAVES et al.
• Court: Alabama Supreme Court

161 So. 108

230 Ala. 304

Ex parte BOARD OF SCHOOL COM'RS OF MOBILE COUNTY.

DAVES et al. v. RAIN.

1 Div. 869

Supreme Court of Alabama

April 25, 1935

Certiorari to Court of Appeals.

James F. Daves and others had judgment against B.A. Lyons and procured a writ of garnishment against B.C. Rain, as Secretary and Treasurer of the Board of School Commissioners of Mobile County. From a judgment for the garnishee plaintiff appealed to the Court of Appeals which reversed the judgment (161 So. 107), and the Board of School Commissioners applies for certiorari.

Writ denied.

Pillans Cowley & Gresham, of Mobile, for petitioner.

Inge Stallworth & Inge, of Mobile, opposed.

GARDNER Justice.

Petitioner insists that the opinion of the Court of Appeals answers its argument against liability as garnishee only in part--that relating to the statute (section 8092, Code 1923), which is not here questioned, under the cited authority of Shepherd v. Jones, 228 Ala. 307, 153 So. 223.

But it is argued that petitioner comes within the protection of section 14 of the Constitution of 1901, which reads: "That the State of Alabama shall never be made a defendant in any court of law or equity." While the board of school commissioners of Mobile County was established by local legislation in 1826, yet we think it quite clear, and not seriously controverted here, that in fact no distinction in principle exists between said board and other boards of education established under the School Code. And the Act of February 15, 1876 (Laws 1875-76, pp. 363, 365), expressly declares such board "may sue and be sued." Our decisions are to the effect that both the city and county boards of education are such agencies as may be subject to suit. Worthington v. City Board of Education, 228 Ala. 660, 154 So. 796; Martin v. Holtville High School Bldg., 226 Ala. 45, 145 So. 491; Greeson v. County Board of Education, 221 Ala. 483, 129 So. 42; Greeson Mfg. Co. v. County Board of Education, 217 Ala. 565, 117 So. 163; Kimmons v. Jefferson County Board of Education, 204 Ala. 384, 85 So. 774.

In Turk v. Board of Education, 222 Ala. 177, 131 So. 436, the correctness of these decisions was fully recognized, but the holding was that upon the broad principle of public policy such agencies were immune from liability for torts of its servants or agents--the same principle that exempts municipalities and other such corporations from like liability in the performance of public or governmental functions.

True these authorities made no reference to section 14 of our Constitution, but merely rested upon the assumption that nothing in the...