Opinion
16442.
JANUARY 10, 1949. REHEARING DENIED FEBRUARY 17, 1949.
Injunction. Before Judge D. S. Atkinson. Chatham Superior Court. September 17, 1948.
Eugene Cook, Attorney-General and John Sammons Bell, Assistant Attorney-General, for plaintiffs in error.
Roy B. Rhodenhiser Jr., and Sylvan A. Garfunkel, contra.
The term "actual controversy" in section 1 of the Georgia Declaratory Judgments Act (Ga. L. 1945, p. 137), and the terms, "rights, status, and other legal relations," of section 13 of the act, all relate to a "justiciable" controversy. A controversy is "justiciable" when there are "interested" parties asserting "adverse" claims upon an accrued state of facts.
No. 16442. JANUARY 10, 1949. REHEARING DENIED FEBRUARY 17, 1949.
The petition of Dr. William H. Lawrence, Dr. Charles W. McHan, and Dr. E. B. Stubbs, in Chatham Superior Court, alleged in substance: The Board of Chiropractic Examiners, a State board charged with the examination and licensing of persons desiring to practice chiropractic in the State of Georgia, is composed of Dr. William E. Brown, and other named persons, (made defendants), the chairman of the board being a resident of Savannah and subject to the jurisdiction of the court. The plaintiffs are all licensed chiropractors in the State, and citizens and residents of the State. The laws of Georgia provide for certain qualifications to be possessed by persons desiring to take the examination to become a practicing chiropractor. Among these requirements is one that each applicant "shall be a graduate of a Chartered Chiropractic School or College which teaches only attendance courses and requiring a four-year standard college course." That portion of the law relating to a "four-year standard college course" was passed at the 1939 session of the General Assembly, such law being approved on March 23, 1939. From the time of the passage of the 1939 act until the time of the examination held by the Board of Chiropractic Examiners in April, 1948, the term, "a standard four-year college course," has been interpreted to mean four college years of nine months each, and the board has refused to grant licenses to persons who did not possess such educational requirements. In April, 1948, the board conducted an examination for persons desiring to practice chiropractic, and at that time permitted applicants with educational accomplishments of less than four standard college years of nine months each to take the examination and subsequently issued licenses to such persons. The Board of Chiropractic Examiners have informed the Georgia Chiropractic Association and others that it is their intention to permit persons with less professional education than four college years of nine months each to take the examination that will be held in October, 1948. The practice of chiropractic is one of the learned professions, namely, that of the healing of the sick. As such a profession it is of vital interest to the members of that profession and to the public in general to see that the profession maintains the highest educational standards possible. The right to practice chiropractic is a valuable right which is entitled to be protected under the Constitution and laws of the State of Georgia. The lowering of the minimum educational requirements by the board was based on the requirements of a liberal arts college course and not a professional course leading to a professional doctorate degree. The question as to what was meant by four standard college years is one now in sharp conflict between the parties and is not a moot question. The prayers were: for process; that pending the final outcome of the petition the defendants be enjoined from conducting any chiropractic examination and from licensing any person to practice the science of chiropractic in the State; that the court render a declaratory judgment interpreting the requirements for a four-year standard college course to be four college years of nine months each; that a copy of the petition be served on the Attorney General of Georgia; and for all other and further "legal equitable relief" to which the plaintiffs may be entitled in the premises.
The general demurrer of the defendants, attacking the petition as failing to state a cause for declaratory judgment, and further attacking the constitutionality of the amendatory act of 1939 (which the plaintiffs contend is applicable to examinations by the board), was overruled by the trial judge. The exception here is to the overruling of the demurrer.
Section 1 of the Georgia Declaratory Judgments Acts (Ga. L. 1945, p. 137) provides that in cases of "actual controversy" the superior courts shall have power to "declare rights" and other legal relations of "any interested party" petitioning for such declaration, whether or not further relief is, or could be, prayed. It is fundamental that every act of the General Assembly shall be construed in its entirely to determine the legislative intent. The writer (expressing purely personal views) is convinced that there has been a tendency on the part of counsel in some cases before this court to misconstrue the definite and positive provisions of section 1 of the act, and to select and remove from the context of section 13 the words "uncertainty and insecurity," as authority for declaratory relief, without any proper consideration as to whether or not the uncertainty or insecurity is with "respect to rights, status and other legal relations."
Whether sections 1 and 13 of the act are analyzed separately or together, a different result will not be reached. The words "rights, status and other legal relations," in section 13, have application solely with reference to legal rights, a legal status, or other legal relations. Issues which are based on fictitious, colorable, hypothetical, or academic questions, or questions that have become moot, do not involve legal rights, legal status, and other legal relations within the meaning of an "actual," justiciable controversy. Borchard on Declaratory Judgments (2d ed.), p. 35; Felton v. Chandler, 75 Ga. App. 354 ( 43 S.E.2d 742); 16 Am. Jur., 285, § 10.
The word "actual," preceding the word "controversy" in section 1 of the act, is a word of emphasis, and not of definition. The word "controversy" within itself contemplates a justiciable controversy. 16 Am. Jur., 285, § 10; Borchard on Declaratory Judgments (2d ed.), p. 40. The words "[legal] rights, [legal] status, and other legal relations," of section 13 of the act are dependent upon an "actual controversy" in a proceeding for declaratory judgment. The "actual controversy" of section 1 of the act means a justiciable controversy, and it is therefore relevant to determine what constitutes a "justiciable controversy."
A controversy is justiciable when there are "interested parties" asserting "adverse" claims (Borchard on Declaratory Judgments, 2d ed., p. 36; 16 Am. Jur., 284, § 10) upon a state of facts which must have accrued, wherein a legal decision is sought or demanded. "For the principle of a declaratory judgment is that it declares the existing law on an existing state of facts. The danger or dilemma of the plaintiff must be present, and not contingent on the happening of hypothetical future events." Borchard on Declaratory Judgments (2d ed., p. 56); 16 Am. Jur., 293, § 19. A rumor which may be false, supported solely by hearsay statements, is never a sufficient cloud upon the rights of any litigant to require or authorize relief by a declaratory judgment.
"Interested" parties must, of course, mean parties having a legal, protectible interest. The term, "legal interest," is not synonymous with the term, "cause of action," since there may well arise a situation or dilemma wherein the petitioner is entitled to relief from uncertainty and insecurity over and beyond traditional statutory relief, or incidental thereto; and, in some instances, independent of any traditional relief. Mayor c. of Athens v. Gerdine, 202 Ga. 197 ( 42 S.E.2d 567). If the petitioner can show that his rights are in direct issue or jeopardy, and at the same time show that the facts are complete, and that his interest is not merely academic, hypothetical, or colorable, but actual, a "legal interest" as related to a justiciable controversy may be shown. From the foregoing it may be observed that it is not always easy to determine whether or not the petition sufficiently sets forth facts that are acute and personal so as to constitute a "legal" interest. Upon such questions the decisions of the courts and the opinions of counsel do not always agree.
The danger, dilemma, or injury about which the plaintiffs in the present case complain is speculative and contingent upon hypothetical future events. There is no allegation in the petition that can be construed as seeking relief against the board based on licenses issued under the examination in April, 1948. The relief sought by the plaintiffs is limited to future examinations to be conducted by the board, and while it is alleged that the defendants have told members of the Georgia Chiropractic Association and others as to the nature of the examination to be conducted, it is not alleged that the plaintiffs are members of the Georgia Chiropractic Association, and no person is named as having been told by the board as to the nature of the examination to be conducted, and the alleged nature of future examinations by the board is apparently based solely upon hearsay statements, or upon rumor, unsupported by any allegations of fact.
16 Am. Jur., 299, § 26, states in part: "In order that a controversy may justify the making of a declaration, it must include a right claimed by one party and denied by the other, and not merely a question as to the abstract meaning or validity of the statute." The petition in this case may be construed as alleging that there is a difference of opinion between the plaintiffs and the members of the examining board as to the correct interpretation to be given the Georgia law in the conduct of such examination. While the plaintiffs may have a general economic interest jeopardized by the administrative opinion of the examining board, there must be an effort to apply the opinion to a plaintiff's particular case in order to place him within the range of a justiciable controversy essential to a declaratory judgment. Borchard on Declaratory Judgments, p. 53.
16 Am. Jur., 331, § 61, states as follows: "Failure to name as defendant one with sufficient adverse interest in the subject of the litigation is a jurisdictional defect. Persons interested on one side only of the controversy are not sufficient parties, although they may disagree as to the law." See also Borchard on Declaratory Judgments (2d ed.), p. 39.
The original act to define the practice of chiropractic and to create a State Board of Examination and Registration (Ga. L. 1921, 167, sec. 2) requires that the licensing board shall be composed of five practicing chiropractors, residents of the State of Georgia. The petition does not allege that the examining board is composed of practicing chiropractors, residents of the State of Georgia. The plaintiffs allege themselves to be practicing chiropractors. The law requires that the defendant board members be practicing chiropractors, and it may be assumed that only practicing chiropractors were named as members of the examining board. The members of the board should, therefore, have equally as much interest as the plaintiffs in maintaining the educational standards and qualifications prescribed by law for licensees. No adverse interest is shown by any allegation of the petition as between the plaintiffs and the examining board. In actuality, the complaint of the plaintiffs is limited to a difference of opinion between them and the examining board over a question "as to the abstract meaning" of a Georgia statute.
In this case the plaintiffs do not show a legal interest nor an adverse interest within the meaning of a justiciable controversy under the Georgia Declaratory Judgments Act. It was error to overrule the demurrer of the defendants, which properly pointed out this deficiency of the petition. No ruling is required upon the other grounds of the demurrer. See Wiley v. Douglas, 168 Ga. 660 (2) ( 148 S.E. 735); Traylor v. Gormley, 177 Ga. 186 (3) ( 169 S.E. 850).
Judgment reversed. All the Justices concur, except Duckworth, C. J., who dissents.