RAY, by Next Friend v. COBB COUNTY BOARD OF EDUCATION
40671
Court of Appeals of Georgia
SEPTEMBER 14, 1964
110 Ga. App. 258
The court erred in overruling the condemnor‘s motion for a judgment n.o.v. The only basis for the claim of title to the alleged private way by the intervenor was that of prescription. Whether other requirements to show a right in said way were shown the evidence affirmatively shows without dispute that the location of parts of the road was changed at least two times within the seven year period shown. The changes were made by the owners of the property without objection from the intervenor. This alone is enough to defeat intervenor‘s claim. Hendricks v. Carter, 21 Ga. App. 527(6) (94 SE 807) and cit.
The judgment is reversed with direction that the court enter up judgment in accord with condemnor‘s motion for a judgment n.o.v.
Judgment reversed with direction. Frankum and Pannell, JJ., concur.
Howell C. Ravan, for plaintiff in error.
Edwards, Bentley, Awtrey & Parker, Fred D. Bentley, Sr., A. Sidney Parker, contra.
FRANKUM, Judge. 1. By the terms of
2. “Under the law of this State, a county board of education is not a natural person, a partnership, or a body corporate with authority to sue or be sued, in the ordinary sense.” Verner v. Board of Ed. of Haralson County, 203 Ga. 521 (2) (47 SE2d 500). This is true except in those cases where an Act of the legislature making a county board of education a body corporate with authority to sue and be sued has been passed. Norman v. Board of Ed. of Richmond County, 218 Ga. 48, 49 (1) (126 SE2d 217). Under the foregoing authorities and a long line of cases cited therein, the school district of each county is one of the “other political subdivisions” referred to in
3. It follows that the judge of the superior court did not err in
Judgment affirmed. Felton, C. J., concurs. Pannell, J., concurs specially.
PANNELL, Judge, concurring specially. In view of the decision of this court in Taylor v. Matthews, 10 Ga. App. 852 (75 SE 166), holding that the trustees of a school district, although not specifically authorized by statute to sue and be sued, could sue on a bond given by a treasurer of a former board of trustees, I must dissent from the reasons given by the majority in the present case for affirming the lower court in sustaining a general demurrer to the petition. None of the cases cited in the majority opinion are cases where the members of a board of education have been included as parties. See also, Board of Ed. of Doerun v. Bacon, 22 Ga. App. 72 (95 SE 753). In Board of Ed. for Houston County v. Hunt, 29 Ga. App. 665 (116 SE 900) this court, in holding that a suit did not lie against the Board of Education of Houston County for breach of contract, said: “The case of Board of Education of Doerun v. Bacon, 22 Ga. App. 72 (2) (95 SE 753), does not conflict with the ruling now made. That case was a suit for damages for the breach of a contract of employment brought against the Board of Education of the Town of Doerun; whereas the instant suit is one for damages for the breach of contract brought against the County Board of Education for Houston County. When the county board of
In addition to the above reasons, it appears that the Act of 1955 (Ga. L. 1955, p. 448) which contained the same provisions as are now embodied in
In my opinion, the Act of 1949 provides a method of satisfying a judgment against school boards, and therefore even if a school
“It is very certain, that the Justices of the Inferior Court, in each county of our State, have been, by law, endowed with certain attributes or powers, which, for some purposes, constitute them, as it were, a corporation. And thus makes them, as this Court has decided in the case cited at bar, what is technically termed a quasi corporation. As such quasi corporation, we have held that they may bring suit in and concerning all matters, touching which they are endowed with these powers. But as such quasi corporation, can they be sued? That is now the question.
“It is insisted, that these capacities to sue and be sued, are necessarily correlative; that the one implies the other. This is not entirely accurate; for we know that the State may sue, and yet, cannot be sued, without its consent, by Statute manifested. By our laws, too, non-residents of the State may bring suit, personally, in any Court within the State; yet, they cannot be sued, except where the sovereign will has said, that they may be sued by a proceeding in rem.
“So the sovereign will of the State, in the creation of this Inferior Court, and in the exercise of legislation from time to time, may have conferred upon it such capacities, clothed it with such trusts, and required of it such duties, as, in the very nature of the case, enable and qualify it to contract and to bring suit against persons violating contracts with it, or committing injuries upon property intrusted to its care; and yet, in the nature of things, this Court may not be (as the State is not) subject to suit—the expression of that sovereign will having stopped short of a provision to this effect.
“We have put two cases: one in which a quasi corporation may sue and cannot be sued; the other, in which a natural person may
sue and cannot be sued. What is the reason that this is true in these cases? “The common answer is, that the State cannot be sued, because it is sovereign; that is to say, all suits in its territories, are brought by authority of its own sovereign power; and the sovereignty cannot, as it were, sue itself. We know, however, that it may be sued, with its consent, in its own Courts. In an elementary point of view, it is evident, that in case of suit without its consent, there would be, not only no power to enforce process and judgment, but there would be no person against whom to enforce it, and nothing out of which to secure payment; there would be, in short, no reus, personally or constructively, a party to such Judicial proceedings, and against whom, or whose property the judgment might be enforced.
“So, in the case of a non-resident, where property is not attached; there is no person against whom to enforce the judgment, and nothing out of which payment may be made.
“If, as a quasi corporation, the Inferior Court be in a category similar in principle, the conclusion is authorized, that they cannot be sued, except by Statutory authority; that is, until some provision be made, by virtue of which, effect may be given to a judgment against them...
“It is avowed, that judgment is asked for against them, in order, as it said, that ‘a liability may be fixed‘; and payment may be sought, from the taxation of the county. But, if judgment be obtained against them, as the execution must always follow the judgment, the execution must issue against them. An execution against them, cannot certainly be enforced against the county, generally; and an inherent difficulty, therefore, lies in the way of such a suit.
“A private corporation may be sued, because it has not only a corporate responsibility, but a corporate fund or property, against which the judgment may be enforced. A very different rule prevails, with regard to the inhabitants of any districts—as counties or towns, incorporated by Statute, which come under the head of quasi corporations; for against them, no private action will lie, unless given by Statute. (Ang. & A. on Corp. 499.).”
“There can be no doubt that, at Common Law, such an action could not be maintained against such a body.
“An action could not have been maintained against the Hundred, on account of robberies, &c., committed therein, but for the Statute of Winton, (13 Edw. 1,) which ‘converted the Hundred into a corporation for this purpose‘. (2 Wils. 92, 93.) So, in the case of Russell et al. vs. The Men of Devon, (2 D. & E. 661,) it was decided, that such an action could not be sustained, at Common Law, against a county, on account of injuries resulting from a bridge being out of repair—Lord Kenyon saying, that ‘there is no precedent of such an action having been before attempted‘; and Mr. Jus. Ashurst remarking, that ‘no such action has ever been brought, though the occasion must have frequently happened‘.
“We have not been content, however, with simply ascertaining, that Courts have said this action could not be sustained at Common Law. We have endeavored to discover the radical reasons for the rule. These reasons, we find, have their root in the very foundations of administrative justice.
”Lex non frustra facit, is a first principle or maxim of our jurisprudence. The law will not, itself, attempt to do an act which would be fruitless. This is said to be ‘a maxim of our legal authors, as well as a dictate of common sense‘. (Broom‘s Leg. Max. 185. Kent, Ch. Jus. 3 John. R. 598).
“A proceeding, such as that which has been instituted against these plaintiffs in error, is precisely of this character. They are not liable, personally, nor by their property, as individuals, as we have seen—they have no corporate property, with which they may be constrained to satisfy the judgment, or out of which payment may be enforced; and the Court, if it granted the judgment, would be powerless to enforce it in any way. If a judgment were obtained against the plaintiffs in error, they would have no power of themselves, even to tax the county for its payment. By law, they can lay a tax, only upon recommendation of the Grand Jury; and then, not more than 50 per cent upon the county tax.
“In trying such a case, therefore, against these plaintiffs in error, the Court, even if it had a reus before it, in judicial contemplation, would not, itself, be acting in the true character of the judex. He who sits as Judge, in a Court of Justice, should
have the power to enforce his judgments; and when a proceeding is brought before him, in which he has not this power, it falls without the scope and limit of his jurisdiction, in that form of proceeding, at least. Hence, the propriety of the maxim I have quoted. Hence, too, that other maxim, lex neminem cogit ad vana seu inutilia. (5 Rep. 21, Co. Lit. 197, c.) On this subject, Ch. Jus. Kent, giving a sort of free translation to this maxim, says, that ‘the law will not attempt to do an act which would be vain, or to enforce one which would be frivolous‘; and further, ‘that a Court will not undertake to exercise power, but when they exercise it to some purpose‘. Trustees of Huntington vs. Nicoll, (3 John. R. 598.) To the same effect, Rex vs. Bish. of London, 13 (Cast. 420, note a.) King vs. Jus. Pembrokeshire, (2 B. & Ad. 391.) “It was upon this principle, that the Court decided, in the case of Russell vs. The Men of Devon, supra, that ‘if the county is to be considered as a corporation, there is no corporate fund out of which satisfaction is to be made’ and, therefore, they thought ‘the experiment ought not to be encouraged.‘”
In my opinion, the legislature having provided a method for payment of judgment against it, the action was properly brought against the board of education and the members thereof in their official capacity. I concur in the judgment reached for the following reasons:
Construing the petition in the present case most strongly against the pleader, and in the light of its omissions as well as its averments, as must be done on demurrer, Toney v. Ledford, 184 Ga. 856 (193 SE 761), Mackler v. Lahman, 196 Ga. 535 (27 SE2d 35), Ford Motor Co. v. Williams, 219 Ga. 505, 508 (134 SE2d 32), it is my opinion that under the facts alleged therein, the 15-year old plaintiff, suffering under no disabilities, was guilty of such lack of ordinary care for his own safety as precludes a recovery. Whether or not, under the facts alleged, the plaintiff comes within the purview of Ga. L. 1960, pp. 289, 673 (