156 Ga. 688 | Ga. | 1923
1. Mandamus will lie against tlie board of education of Colquitt County, to compel them to issue commissions to persons duly elected trustees of a school district in accordance with the provisions -of section 120 of the act entitled “ An act to codify the school laws of the State of Georgia,” etc. (Acts 1919, p. 288:, when such board improperly refuses to confirm the election of such trustees and to issue to them their commissions. Harrell v. Williams, 154 Ga. 632 (115 S. E. 97).
(а) Certiorari is an appropriate remedy to review the judgment of an inferior judicatory only when such tribunal exercises judicial or quasi-judicial powers. Daniels v. Commissioners of Pilotage, 147 Ga. 295 (93 S. E. 887) ; City of Atlanta v. Blackman Health Resort, 153 Ga. 499 (113 S. E. 545).
(б) The right of appeal given in section 13 of the above act exists only when the county board of education has heard and decided some matter of local controversy in reference to the construction or administration of the school law, and is confined to the parties to such controversy; but is not applicable to a direct proceeding brought against such board to compel the discharge of some official duty.
2. -The pertinent portions of section 120 of said act are as follows: “ Within ninety days after the board of education has laid off the county as required in section 1531, said board may or may not order the citizens of the several school districts to hold an election for the purpose of electing three trustees for each district in the county. . . The trustees shall be intelligent citizens of good moral character who are known to be earnest supporters of public education. . . The notice of their election shall be filed by the election managers with the county school superintendent, who shall submit the same to the county board of education for their approval. . . If the county board of education shall consider any member or members unqualified for the work, they shall refuse to confirm the election of such member or members and require the citizens of a district at a time and place and in a manner prescribed by the county board of education to elect others.” Held;
(а) That while mandamus is ordinarily a remedy for official inaction, and does not generally lie to control the conduct of an officer vested with discretion, yet where the exercise of such discretion has been so capricious or arbitrary as to amount to its gross abuse, mandamus is a proper remedy to correct such gross abuse of discretion. City of Atlanta v. Wright, 119 Ga. 207 (45 S. E. 994) ; Richmond County v. Steed, 150 Ga, 229 (103 S. E. 253).
(б) That, if intelligent citizens of good moral character, who are known to be earnest supporters of public education, are duly elected trustees of a school district, the county board of education is not clothed with absolute discretion to refuse to approve their election and to commission them, said board having power to refuse to confirm tbe election of such trustees only when the persons elected are un
(c) That the county board of education is without authority to refuse to confirm the election of trustees and to issue them commissions on the ground that such trustees decline to assume personal responsibility for an indebtedness incurred by then- predecessors in office in behalf of the school district.
3. If an issue of fact is involved in a mandamus case, such issue shall be tried by a jury. Civil Code (1910), § 5445. Where the petition for mandamus is brought to compel the county board of education to issue to the petitioners their commissions as duly elected trustees of a school district, and it is alleged therein that' the petitioners were elected at the time, place, and in the manner prescribed by the board, that the applicants are intelligent citizens of good moral character who are known to be earnest supporters of public education, and that the board of education refused to confirm their election and commission them, because they declined to assume individually the payment of an indebtedness •which their predecessors in office had contracted in behalf of the school district and individually assumed, the last allegation being made upon information and belief, and where the defendant in its answer denied these allegations, issues of fact were raised which could only be tried by a jury.
4. The petition alleging that the election was held at the proper place as ordered, and the answer denying this allegation, an issue of faco was thus raised, which can only be decided by a jury under the proof and proper instructions from the court.
5. Applying the above rulings, the trial judge erred in refusing to have the issues of fact in this ease submitted to a jury for decision, and in denying a mandamus upon the petition and answer.
Judgment reversed.
