Murdock v. Perkins

• Decision Date: 05 March 1964
• Docket Number: 22380,Nos. 22361,22379,s. 22361
• Citation: 219 Ga. 756,135 S.E.2d 869
• Parties: J. F. MURDOCK v. E. E. PERKINS et al., Members of the Board of Education, Floyd County. James S. PETERS et al. v. E. E. PERKINS et al. E. E. PERKINS et al. v. James S. PETERS et al.
• Court: Georgia Supreme Court

Page 869

135 S.E.2d 869

219 Ga. 756

J. F. MURDOCK v. E. E. PERKINS et al., Members of the Board of Education, Floyd County.

James S. PETERS et al. v. E. E. PERKINS et al.

E. E. PERKINS et al. v. James S. PETERS et al.

Nos. 22361, 22379, 22380.

Supreme Court of Georgia.

March 5, 1964.

Rehearing Denied March 18, 1964.

Syllabus by the Court

1. The petition stated a cause of action for equitable relief by injunction where there was no adequate remedy at law to prevent acts of a county school superintendent based on a void judgment of the State Board of Educaiton.

2. The State of Georgia may not be sued without its consent, but injunction will lie, and it is the appropriate remedy to be employed to prevent the commission of a wrongful act by an officer, agent, or board of this State, even when acting under color of office but without lawful authority, and beyond the scope of official power.

3. In the absence of specific statutory authority, an administrative board, having made a judicial determination, has no lawful authority to reverse that decision.

4. Where the judgment of the court below is affirmed on the main bill, and the effect of the affirmance does not leave the case to be tried again, a cross bill will be dismissed.

5. This court will not pass upon the questions presented in a bill of exceptions when, even if the answers be favorable to the complaining party, the rulings made could not possibly result in any substantial benefit to such party.

The named members of the Board of Education of Floyd County, Georgia, acting in their official capacity brought their petition in Floyd Superior Court against J. F. Murdock, a resident of Floyd County, and against ten named individuals, residents of other counties in Georgia, individually and in their official capacity as members of the State Board of Education of the State of Georgia, alleging the following:

That on July 27, 1963, the Floyd County Board of Education, after hearing, removed the defendant, J. F. Murdock, from office as Superintendent of the Floyd County Schools; that Murdock filed an appeal to the State Board of Education; that, after notice to all parties and after hearing, the State Board by a 4 to 4 vote affirmed the action of the Floyd County Board of Education in removing Murdock from office; that Murdock did not within 30 days file a petition for writ of certiorari or seek judicial review of the decision; that on October 16, 1963, the State Board at a regular meeting thereof reconsidered the appeal of Murdock, reversed its previous decision and ordered that Murdock be reinstated, that his back pay from date of dismissal be paid, and threatened to hold up State funds to the county unless he was immediately reinstated.

The petition further alleged that the decision and order of the State Board reinstating Murdock are void and without legal effect because the Board was without jurisdiction to reconsider the Murdock appeal and to vacate the previous action affirming the County Board; that the State Board is an administrative body and has no jurisdiction beyond that granted it by statute and Constitution of the State of Georgia, and that it has not been granted authority to reconsider or vacate an order or decision previously made by it, and therefore its order of October 16, 1963, is null and void; that defendant Murdock is asserting himself as Superintendent of Floyd County Schools, is demanding his pay as such, and is insisting on his right to assume the duties of the office; that petitioners have no adequate remedy at law and seek a decree declaring the decision and orders of October 16, 1963, null and void.

The State Board of Education filed general demurrers to the petition, and J. F. Murdock filed general and special demurrers to the petition, which were overruled by the trial judge. To that judgment the State Board of Education and J. F. Murdock each excepted, and each filed separate bills of exceptions, and each is before this court by separate writs of error. In a cross bill of exceptions the Floyd County Board of Education excepts to an order of the trial court granting a motion of the State Board of Education to dissolve a temporary injunction granted as against the members of the State Board of Education.

Zade Kenimer, Waverly Hall, Clower & Royal, E. J. Clower, Rome, for J. F. Murdock.

Wright, Walther & Morgan, Clinton J. Morgan, Rome, for E. E. Perkins and others.

Eugene Cook, Atty. Gen., Allan T. Hodges, Asst. Atty. Gen., Atlanta, for State Board of Education.

MOBLEY, Justice.

1. The writ of error in the case of the State Board v. the County Board, with the cross bill, and the case of J. F. Murdock v. Floyd County Board will be disposed of by this decision.

We first consider exceptions to the judgment overruling the general demurrer of the State Board of Education to the petition brought by the Floyd County Board of Education and the cross bill therein. The questions presented in the main bill are: 1. Does the petition state a cause of action for equitable relief? 2. Is this a suit against the State of Georgia? 3. Did the Board of Education have the legal authority to review and reverse its previous decision affirming the action of the Floyd County Board of Education in dismissing the Superintendent of the Floyd County Schools?

The petition does state a cause of action for equitable relief. There is no merit in the contention that the plaintiffs had an adequate remedy at law. The County Board sought to enjoin acts stemming from an allegedly void judgment of the State Board of Education on grounds that said judgment was rendered by the Board, when it lacked the legal authority to reconsider and reverse is prior decision, and that their judgment was therefore void and of no force and effect.

Code § 37-120 provides, 'Equity will not take cognizance of a plain legal right where an adequate and complete remedy is provided by law; but a mere privilege to a party to sue at law, or the existence of a common law remedy not as complete or effectual as the equitable relief, shall not deprive equity of jurisdiction.' See Hollingshead v. McKenzie, 8 Ga. 457(2); Markham v. Huff, 72 Ga. 874(1); Cummings v. Robinson, 194 Ga. 336, 21 S.E.2d 627. Assuming, without deciding, that there was a remedy at law by either certiorari or quo warranto as is contended, such remedies nevertheless would not have afforded an adequate remedy. These remedies at law were not adequate to immediately and fully restrain Murdock from interfering with the County Board in the operation of the schools by assuming or attempting to assume the office of Superintendent of Schools and carrying on the dutires of the office, and by claiming present and past pay as such.

In Cummings v. Robinson, 194 Ga. 336, 21 S.E.2d 627, petitioner sought to enjoin the defendant from going into, taking part in, or otherwise seeking to exercise the functions of a county commissioner. The contention on demurrer was that the petition failed to set out a cause of action for equitable relief and that there was an adequate remedy at law by quo warranto. This court in holding that the petition stated a cause of action for injunctive relief stated, 'In such case the writ of quo warranto, though itself a speedy remedy, could not supply that immediate and preventive relief which could be granted through the writ of injunction, and thus also cases cited therein at page 346 of 194 Ga., 21 S.E.2d 633. Ga., 21 S.E.2d 633.

In Moultrie Milk Shed Inc. v. City of Cairo, 206 Ga. 348, 351, 57 S.E.2d 199, injunction was sought to prevent the defendants from acting to enforce a void city ordinance. The defendants contended that certiorari was the sole available remedy; therefore, petitioner was not entitled to equitable relief. In reply thereto this court stated, 'As to the specific matters embraced in cases that are being reviewed by certiorari, the position of counsel is sound; but as to the injuries subsequently thereto resulting from the acts or threatened acts of the defendants, the petitioner is entitled to relief in equity * * * provided it be held that the ordinance in question is void.'

Injunction afforded the most effectual and complete relief in this case, as well as the only adequate remedy, because neither certiorari nor quo warranto would have provided the instant relief needed to prevent injurious acts by Murdock based on a void judgment.

2. The contention that the present suit is in effect one against the State, insituted without its consent, and consequently not maintainable, is without merit. The real test of whether or not an action is one against the State is stated in, Georgia Public Service Commission v. Atlanta Gas Light Company, 205 Ga. 863, 55 S.E.2d 618, as follows: 'In determining whether the action is one against the State where the suit is against an agency or officer of the State, the nature of the suit or relief prayed must be considered, and not merely the position or character of the agency or officer against whom the action is brought. The question is, does the action affect a contract or property right of the State, so that a judgment against the State agency or officer will bind the State or control future State action? The State's interest must be of such substantial nature that the result of the action affects it as a sovereign entity.'

The instant case does not affect a contract or property right of the State. The judgment does not bind the State or control future State action, but merely settles a procedural matter relating to the jurisdiction of the State Board of Education to modify or reverse a previous decision made by it. The State's interest is not of such a substantial nature that the result of the action affects it as a sovereign entity.

This is a suit against the ten members of the State Board of Education, who, it is alleged acted illegally and without lawful authority for the reason that they were without jurisdiction to reverse...