O'Callahan v. Aikens

126 S.E.2d 212, 218 Ga. 46, 1962 Ga. LEXIS 424

• Court: Supreme Court of Georgia
• Decided: May 28, 1962
• Docket: 21655
• Status: Published

Opinion

Duckworth, Chief Justice.

1. The right to the extraordinary writ of mandamus is available only “if there shall be no other specific legal remedy.” Code § 64-101; Gray v. Gunby, 206 Ga. 63 (55 SE2d 588); Wofford v. Porte, 212 Ga. 533 (93 SE2d 690); Westberry v. Taylor, 215 Ga. 464, 465 (111 SE2d 77).

2. Paragraph 4 of the Grants for Education Act (Ga. L. 1961, p. 36) specifically provides for the State Superintendent of Schools to direct payment from State funds if any local system wrongfully fails or refuses to pay any grant, and to deduct said sums paid from such State funds to which such local systems otherwise would have been entitled under applicable law. (For changes in this law, which do not affect the present case, see amendment thereto adopted March 3, 1962, Ga. L. 1962, pp. 552, 558).

Argued May 15, 1962 Decided May 28, 1962. J. C. Savage, A. C. Latimer, for plaintiffs in error. Moretón Rolleston, Jr., contra.

3. The petition fails to show that the plaintiff has applied to the State Superintendent in accordance with the law upon the refusal of the local board or system to pay the grant upon her application therefor or to furnish the application forms in accordance with the law. The petition does not show that she has exhausted available administrative remedies before applying for the extraordinary remedy of mandamus, and for this reason, no cause of action is alleged, and the general demurrer should have been sustained. Accordingly, the court erred in overruling the demurrer of the defendants. This ruling renders nugatory all further proceedings in the case.

Judgment reversed.

All the Justices concur.