South View Cemetery Ass'n v. Hailey

• Decision Date: 03 July 1945
• Docket Number: 15193.
• Citation: 34 S.E.2d 863,199 Ga. 478
• Parties: SOUTH VIEW CEMETERY ASS'N v. HAILEY, Chairman, of Board of County Com'rs, et al.
• Court: Georgia Supreme Court

34 S.E.2d 863

199 Ga. 478

SOUTH VIEW CEMETERY ASS'N v. HAILEY, Chairman, of Board of County Com'rs, et al.

No. 15193.

Supreme Court of Georgia

July 3, 1945

Syllabus by the Court.

Under the petition in this case, the court erred in ruling that mandamus was not available, and that certiorari was the petitioner's proper and exclusive remedy, in attacking the failure of the county commissioners to grant a permit for a cemetery under the provisions of Georgia Laws, 1910, page 130; and, since it appears that the petition was dismissed because the trial court was of the opinion that it was without jurisdiction to entertain the petition on its merits and so held, and since this court is a court for the correction of errors, has no original jurisdiction, and cannot pass upon questions on which no ruling expressly or impliedly has ever been made, or which under the ruling actually made could have been made, by the trial court, the judgment dismissing the petition for lack of jurisdiction is reversed, and the case is remanded in order that the petition may be considered on its merits in accordance with the provisions of the Code, § 64-107 et seq.

The General Assembly, by an act approved August 9, 1910 Ga.L.1910, p. 130, provided as follows: 'That in all counties of this State having a population of one hundred twenty-five thousand (125,000) or more, the board of county commissioners, or if there be no such board, the ordinary of said county, shall have the power to grant or refuse permission to establish outside the limits of incorporated towns, cemeteries, hospitals, sanatoriums, or similar institutions. Said county authority as above stated may grant permission to establish such institutions under such regulations as they may deem proper for the public good.' The plaintiff in error filed a mandamus proceeding in Fulton superior court, alleging that in pursuance of said act, and in conformity with the decision of this court (Southview Cemetery Association v. Kitchens, 162 Ga. 322, 133 S.E. 919), to the effect that extensions of cemeteries come within the purview of said act, the petitioner had applied to the board of commissioners of said county for permission to enlarge a described cemetery in a designated manner. The petition charged that the board of commissioners, after considering documentary and other evidence, denied the application, which denial it is alleged was 'without legal excuse or justification,' and was 'arbitrary, capricious, and a gross abuse of discretion.' To this petition for mandamus there was attached a transcript of the documentary and other evidence adduced at the hearing before the commissioners. The defendant commissioners at the mandamus hearing demurred to the petition as follows: '1. Defendants demur to plaintiff's petition on the ground that same does not set forth a cause of action. 2. Defendants demur to plaintiff's petition as a whole on the ground that no cause is shown why a mandamus should issue in this case to compel the defendants to perform an act which is discretionary on their part. 3. Defendants demur to plaintiff's petition as a whole on the ground that the plaintiff has a complete and adequate remedy at law.' Whereupon the judge of the superior court entered the following order: 'The general demurrer filed by the defendants January 11, 1945, is hereby sustained and said case is hereby dismissed. Whether the county commission acted in the matter with judicial powers, being under the law required to do so, it nevertheless appears that it had a lengthy hearing with all parties present and passed an order (the equivalent of a judgment). In view of the matter, certiorari and not mandamus was the proper remedy.' While it appears from the record that the defendants filed an answer, since the exceptions taken relate only to the order passed on demurrer, the contents of the answer do not appear in the record. The plaintiff in error states in the brief of its counsel, that 'the sole issue before the court is whether or not certiorari and not mandamus is the proper remedy' which the petitioner was entitled to invoke. Counsel for the defendants dispute this, and say that, while the trial judge gave as his reason for sustaining the demurrer and dismissing the petition that he was without jurisdiction to entertain such a petition, his action in dismissing it should be sustained if correct for any other reason, and that this court, if correct for any other reason, and that this court, if need be, should consider the petition on its merits.

Mary J. Payne and Wm. F. Buchanan, both of Atlanta, for plaintiff in error.

James F. Cox, W. S. Northcutt, and E. H. Sheats, all of Atlanta, for defendants in error.

JENKINS Presiding Justice.

1. The Code, § 19-101, provides as follows: '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; also from the Supreme Court to the Court of Appeals as provided by section 2-3009.'

2. The performance of judicial acts under authority conferred upon courts is judicial in character, while the performance of judicial acts under authority conferred upon other persons, boards, or tribunals is quasi-judicial. Just as the authorized acts and functions of courts may or may not be judicial in character, so the authorized acts and functions of other officers or bodies may or may not be quasi-judicial in character, according to whether or not the character and nature of the authorized function and the authorized manner and method of its performance are made so by competent authority.

3. The chief distinction between a legislative and judicial function is that the former sets up rights or inhibitions, usually general in character; while the latter interprets, applies, and enforces existing law as related to subsequent acts of persons amenable thereto. An example of delegated legislative authority may be seen in many of the authorized functions of public-service commissions.

4. It has often been said in effect by various courts of the country that the basic distinction between administrative and judicial acts is that in the former case the law prescribed and defined the duty to be performed with such precision and certainty as to leave no room for the exercise of judgment or discretion; whereas in the latter case the act to be done does involve the exercise of judgment or discretion. Burnam v. Terrell, 97 Tex. 309, 78 S.W. 500, quoting Commissioner of General Land Office v. Smith, 5 Tex. 471, 479; Rainey v. Ridgway, 151 Ala. 532, 43 So. 843, 844, citing Flournoy v. City of Jeffersonville, 17 Ind. 169, 79 Am.Dec. 468; Tennessee & C. R. Co. v. Moore, 36 Ala. 371; Morton v. Comptroller General, 4 S.C. 430; Commissioner of General Land Office v. Smith, 5 Tex. 471; Life & Fire Ins. Co. v. Wilson's Heirs, 33 U.S. 291, 8 Pet. 291, 8 L.Ed. 949; State ex rel. Higdon v. Jelks, 138 Ala. 115, 35 So. 60, 61. This might well be true in so far as the acts pertain to the normal powers and functions of courts. But our own courts do not appear to recognize any such far-reaching and all-embracing distinction, as related to the acts of other officers and tribunals. Southeastern Greyhound Lines v. Georgia Public Service Commission, 181 Ga. 75, 77, 181 S.E. 834, 102 A.L.R. 517. Such an executive officer is not a mere automation. In the exercise of his administrative duties he may find it necessary, advisable and proper to acquaint himself with the facts involved, and more often than not he should, and does, bring to bear in the performance of his administrative duties both judgment and discretion. But such an investigation, if any, is ex parte or voluntary, and the conclusion which his judgment and discretion impels, and which is evidenced by his administrative act, does not take the form of a judgment between parties litigant after an orderly trial in accordance with judicial procedure. It thus appears that the basic distinction between an administrative and a judicial act by officers other than judges is that a quasi-judicial action, contrary to an administrative function, is one in which all parties are as a matter of right entitled to notice and to a hearing, with the opportunity afforded to present evidence under judicial forms of procedure; and that no one deprived of such rights is bound by the action taken. Armstrong v. Murphy, 65 A.D. 126, 72 N.Y.S. 475; Flournoy v. City of Jeffersonville, 17 Ind. 169, 173, 79 Am.Dec. 468; Arkle v. Board of Commissioners, 41 W.Va. 471, 23 S.E. 804, 807; Merchants' National Bank v. Jaffray, 36 Neb. 218, 54 N.W. 258, 259, 19 L.R.A. 316; Board of Commissioners v. Northern Pac. R. Co., 10 Mont. 414, 25 P. 1058, 1060.

(a) 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.

(b) 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...