173 Ga. 203 | Ga. | 1931
Lead Opinion
The political subdivision of Georgia now known as Long County was carved or taken from Liberty County as it existed before the dismemberment of Liberty County. Before the territory now known as Long County was cut off from Liberty, there had been purchased for the use of the school children of Liberty County, as then constituted, a large number of desks and other necessary school equipment, which in its distribution was equally divided between the schools in Long County as created, and in the remainder of Liberty County as it now exists since the taking of the territory which constitutes Long County. Long County began functioning as such in 1921, and in March' of that year the Board of Education of Long County agreed to pay one half the amount of the original purchase-price which was unpaid. The balance of the purchase-price of the desks, etc., was due in three annual instalments. Long County did pay half of the balance due in 1921, but thereafter failed to comply with its prior agreement and refused to pay the remainder due under the agreement. The refusal of the Board of Education of Long County to comply with its promise to pay for the school desks and other appliances, from the use of which it has enjoyed all the benefits, is the basis of the present writ of error. In accordance with the provisions of the code of school laws of 1919 (Acts 1919, p. 288), the Board of Education of Liberty County filed a petition to the State school superintendent, and asked that he adjudge and require the Board of Education of Long County to pay for the school supplies which had been received by it, as it had agreed to do.
Leaving out all subsidiary matters, the merit of the present writ of error depends upon whether the lower court erred in finding against the defendant’s plea of the bar of the statute of limitations. This question in turn depends upon a solution of the problem as to whether the court correctly held that the judgment of the State Board of Education is the judgment of a tribunal which can properly be held to be a court whose final adjudications stand upon a like footing with other courts from whose judgment there is no appeal. The conclusion of a judicial tribunal is nothing more than brutum fulmen if the final adjudication can not be enforced. Tribunals whose findings are merely advisory in their nature may be created, and as a matter of fact exist, but these can in no circumstances be held to be judicial in their nature. In their constitution there inheres no judicial function. To their duties no judicial function appertains. It is to be borne in mind also that in this State the right of the General Assembly to create departments or subdivisions of government whose duties are purely ministerial is practically unlimited. In consideration of the foregoing statements, what position does the State Board of Education occupy with relation to the administration of the public-school system of this State? Under the provisions of the code of school laws of 1919, if the duties of this State board are merely ministerial, or no more than advisory, it of course has no power to render final judgment in any matter affecting the conduct of the Georgia system of public schools. We quote the following provisions from the code of school laws (Acts 1919, p. 288) : The caption of the act, so far as is material at this time, is “An act to codify the school laws of' the State of Georgia . . ; to revise the school laws of the State ;
Subsection 85 of section v of article viii (Acts 1919, p. 324) of ,the code of school laws is as follows: “Sec. 85. Powers of County Boards as School Court. The County Board of Education shall constitute a tribunal for hearing and determining any matter of local controversy in reference to the construction or administration of the school law, with power to summon witnesses and take testi- ■ mony if necessary; and when they have made a decision, said decision shall be binding upon the parties. Either of the parties shall have the right of appeal to the State school superintendent, and said appeal shall be made through the county superintendent in writing, and shall distinctly set forth the question in dispute, the decision of the County Board, and testimony as agreed upon by the parties to the controversy, or, if they fail to agree, upon the
Since it must be conceded that the General Assembly has the right to create courts which shall have exclusive jurisdiction to deal with all matters embodied in the conduct of schools, except those which present questions of which the superior courts have exclusive jurisdiction, we are of the opinion that the trial judge in this case did not err in holding that the judgment rendered by the State Board of Education could be enforced, and of right should be enforced, by mandamus. While “mandamus does not lie as a private remedy between individuals to enforce private rights, nor to a public officer who has an absolute discretion to act or not, . . it is not confined to the enforcement of mere ministerial duties.” Code of 1910, § 5441. The judgment rendered by the State Board of Education was not against the individuals who composed the Board of Education of Long County, but it required the persons composing the Board of Education of Long County, in their official capacity, to recommend to the county commissioners of that county to levy a tax in amount sufficient to pay the Board of Education of Liberty County the amount which the “tribunal in the nature of a court” found to be due to the Board of Education
In Daniels v. Commissioners of Pilotage, 147 Ga. 295 (93 S. E. 887), which involved the grant of a mandamus absolute, and in which the application for mandamus was held by this court to be properly denied, it was plainly pointed out that the remedy of mandamus would have been applicable to enforce the performance of judicial function, had the exercise of such jurisdiction been involved under the facts submitted to the superior court; and that the mandamus absolute was denied under the circumstances, because the commissioners of pilotage were vested with a discretion as.to whether they would authorize licensed pilots of the bar of Tybee to operate a boat separate and independent from the pilot boat to which, under the rules of the commissioners, all pilots were required to be attached, and that their discretion was not abused. In the opinion Commissioners of Pilotage v. Low, R. M. C., 298, Low v. Commissioners of Pilotage, R. M. C., 302, and Healey v. Dean, 68 Ga. 514, were cited. In the first of those cases it was held that where a new jurisdiction was created by statute, proceeding along the course of the common law, the superior court, on certiorari, would affirm or quash its proceedings. Also, that where a new jurisdiction is created by statute without prescribing its form of proceeding, such jurisdiction may pursue its own forms and regulations, if not inconsistent with the laws of the land. The court stated, as the .reason for its judgment, that “No notice whatever 'was given to the defendants of this proceeding; no opportunity afforded them of being heard in their defence,” that the commissioners in the trial held by them “have not acted according to the provisions of the act creating them, and that their proceedings, both in regard to the imposition of fines and the suspension, must be quashed.” In Low v. Commissioners, supra, it was held that the commissioners of Pilotage constituted a court for the purpose of suspending a pilot, under the provisions of the 7th section of the legislative act of 1799. “There are certain
It does not lie in the mouth of the plaintiffs in error in this case tp question the jurisdiction of the State school superintendent or ■of the State Board of Education, because by its own act the State ¡school superintendent in the first instance, and the State Board of .Education in the final trial, obtained jurisdiction. In view of what we have said, the jrrdgment rendered by the State Board of Education was not barred by the statute of limitations. Seven years must-pass after the rendition of a judgment before it is barred. 'The judgment in this case was rendered on May 23, 1924, and this ¡application for mandamus was made on August 12-, 1930, more than nine months before the expiration,of seven years from the date
Judgment affirmed.
Dissenting Opinion
I dissent from the judgment in this case, being of the opinion that the ground of the demurrer filed by the board of education of Long County, to the effect that the decision of the .State superintendent of schools, which was afterwards affirmed by the State Board of Education, was without effect and void, because that tribunal was without jurisdiction to render such decision, should have been sustained.