Opinion
22206.
SUBMITTED OCTOBER 14, 1963.
DECIDED NOVEMBER 7, 1963.
Declaratory judgment; constitutional question. Tift Superior Court. Before Judge Gray.
Schreiber Rozier, for plaintiff in error.
Eugene Cook, Attorney General, G. Hughel Harrison, Leroy C. Hobbs, Assistant Attorneys General, contra.
The petition in the instant case failed to set forth a cause of action for declaratory judgment.
SUBMITTED OCTOBER 14, 1963 — DECIDED NOVEMBER 7, 1963.
Phil Campbell, in his official capacity as Commissioner of Agriculture of the State, brought an action for declaratory judgment against Ed W. Dunn in Tift Superior Court. The petition alleged that the defendant is a producer of peanuts and subject to the terms and provisions of Marketing Order No. 3 (hereinafter referred to as the Marketing Order), attached to the petition as an exhibit; that the defendant produced approximately 75 tons of peanuts during 1962 and that the levy and assessment under the Marketing Order was $1.00 per ton or $75; that the petitioner is obligated to collect the assessment imposed upon producers of peanuts and hold the amounts in trust; that the defendant has failed and refused to pay the assessment and there is a justiciable issue in that the defendant denies any obligation or duty to pay such assessment; that an amendment (hereinafter referred to as the Amendment) to Article VII, Section II of the Georgia Constitution ( Code Ann. § 2-5501.1) was proposed by an Act of the General Assembly (Ga. L. 1960, p. 1245) and ratified by a vote of 247,301 for and 128,534 against and duly declared to be a part of the Constitution (Paragraph 1-A of Article VII, Section II) by proclamation of the Governor. The petition then set out the form of the ballot as prescribed by the legislature:
"For [and against] ratification of amendment to the Constitution so as to provide for the promotion of agricultural products."
The further averments of the petition were: that subsequently the General Assembly enacted the Georgia Agricultural Commodities Promotion Act (hereinafter referred to as the Promotion Act), Ga. L. 1961, p. 301, which stated that it was to implement the Amendment and that the provisions of the Promotion Act relating to financing the programs authorized thereunder were determined by the legislature to be an exercise of the authority provided for by Amendment; that the Marketing Order was approved by the affected producers by a vote of 9,839 for and 591 against and has been effective since August 1, 1961; that in addition to the duty of collecting the assessment the petitioner is required to perform other duties in enforcing the Marketing Order and in the collection, retention, accounting and disbursement of funds of the Marketing Order; that the court should take jurisdiction to declare and adjudicate the rights of the parties in order to guide and protect them from uncertainty and insecurity in future actions and conduct properly incident to their respective rights; that failure to do so will jeopardize the future actions of the parties.
The pertinent prayers were: that the court declare the Amendment properly ratified and a part of the Constitution; that the court declare the Promotion Act valid and that its provisions and terms are within the Constitution; that the court declare the Marketing Order valid and within the terms and provisions of the Promotion Act; that the defendant is liable for the payment of the levy and assessment of $1.00 per ton on peanuts produced by him during the time that the provisions of the Marketing Order remain effective.
The defendant filed his demurrers which attacked the ratification of the Amendment and the constitutionality of the Promotion Act and the Marketing Order issued pursuant thereto. The cause came on for hearing on the demurrers at which time the trial judge overruled them on each and every ground, and, on stipulation of the parties, entered a final judgment which declared that: the Amendment was properly ratified and is a part of the Constitution; the Promotion Act is valid and its provisions and terms are within the Constitution; the Marketing Order is valid and within the terms and provisions of the Promotion Act; and further the defendant is liable for the payment and levy of the assessment of $1.00 per ton on peanuts produced by him during the time the Marketing Order remains effective.
The defendant excepted and assigns error on the overruling of the general demurrers upon the ground that "it was contrary to law," and to the entering of the final judgment on the ground that "it was contrary to law, for the reason that the laws set out in the petition of plaintiff are unconstitutional, and such ruling being controlling, as the plaintiff contends and said ruling and judgment entered into and did affect the further progress and final result of the case and illegally terminated the same."
The second ground of general demurrer is that the petition does not set forth a valid cause of action for declaratory judgment. This court has held in full-bench cases: "While, under Ga. L. 1959, p. 236, amending the Declaratory Judgments Act (Ga. L. 1945, p. 137; Code Ann. § 110-1101 et seq.), by adding thereto Section 1 (c), one is not precluded from obtaining relief by declaratory judgment merely because the complaining party has other adequate legal or equitable remedy or remedies, yet `The object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated.' Rowan v. Herring, 214 Ga. 370, 374 ( 105 S.E.2d 29), and cases there cited. And where, as here, the petition shows that the rights of the parties have already accrued and no facts or circumstances are alleged which show that an adjudication of the plaintiffs' rights is necessary in order to relieve the plaintiffs from the risk of taking any future undirected action incident to their rights, which action without direction would jeopardize their interests, the petition fails to state a cause of action for declaratory judgment." Pinkard v. Mendel, 216 Ga. 487, 490 (2) ( 117 S.E.2d 336); State v. Hwy. Dept. v. Ga. Southern c. R. Co., 216 Ga. 547 (2) ( 117 S.E.2d 897). The present suit is a simple statutory action for the collection of an assessment instituted under and as provided by the Georgia Agricultural Commodities Promotion Act (Ga. L. 1961, pp. 301, 348, Section 20; Code Ann. § 5-2920). In the opinion of the court it falls squarely within the rule above stated and hence does not set forth cause for a declaratory judgment.
The trial judge erred in overruling the defendant's demurrer to the petition.
Judgment reversed. All the Justices concur, except Quillian, J., who dissents.
The foregoing opinion does not express my views. I think the petition set forth a cause for declaratory judgment and was not subject to demurrer for any of the reasons assigned.