Murdock v. Perkins

135 S.E.2d 869, 219 Ga. 756
CourtSupreme Court of Georgia
DecidedMarch 5, 1964
Docket22361, 22379, 22380
StatusPublished
Cited by11 cases

This text of 135 S.E.2d 869 (Murdock v. Perkins) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Murdock v. Perkins, 135 S.E.2d 869, 219 Ga. 756 (Ga. 1964).

Opinions

Mobley, Justice.

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 its 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 SE2d 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 [759]*759to 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 duties of the office, and by claiming present and past pay as such.

In Cummings v. Robinson, 194 Ga. 336, supra, 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 would not be as complete or effectual.” See also cases cited therein at page 346.

In Moultrie Milk Shed, Inc. v. City of Cairo, 206 Ga. 348, 351 (57 SE2d 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 subsequent 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.

The contention that the present suit is in effect one against the State, instituted 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 Co., [760]*760205 Ga. 863 (55 SE2d 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 their previous order affirming the County Board of Education of Floyd County. “Injunction will lie, and it is the appropriate remedy to be employed, to prevent the commission of a wrongful act by an officer or agent of this State, even when acting under color of his office but without lawful authority, and beyond the scope of his official power.” Moore v. Robinson, 206 Ga. 27 (1a) (55 SE2d 711). See also Irwin v. Crawford, 210 Ga. 222, 225 (78 SE2d 609), where this court said, “It is likewise clear that if the proposed action of the county board is dealing with a matter over which the board had no jurisdiction and would be illegal or contrary to law, the trial court properly interfered by injunction.”

Clearly, this action seeking to enjoin the illegal acts of the members of the State Board, to wit the rendering of a decision which they were without jurisdiction to do, was not subject to general demurrer on the ground that it was a suit against the State.

Material to the answer to the question of whether the [761]*761State Board had lawful authority to review its previous decision, affirming the local Board’s action in dismissing the Superintendent of Schools is whether the decision of the Board was a judicial act rendered by it while acting in a quasi-judicial capacity.

“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. . . 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.” South View Cemetery Assn. v. Bailey, 199 Ga. 478, 480 (2), 481 (34 SE2d 863). See also Mayor of Union Point v. Jones, 88 Ga. App.

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Murdock v. Perkins
135 S.E.2d 869 (Supreme Court of Georgia, 1964)

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Bluebook (online)
135 S.E.2d 869, 219 Ga. 756, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murdock-v-perkins-ga-1964.