Opinion
37016.
DECIDED JANUARY 28, 1958. REHEARING DENIED FEBRUARY 13, 1958.
Petition for declaratory judgment. Fulton Superior Court. Before Judge Alverson. October 22, 1957.
Isaac C. Adams, Adams McDonald, Cravey Pentecost, for plaintiffs in error.
Horace T. Clary, Parker, Clary Kent, contra.
The plaintiff's petition seeking a declaratory judgment was not subject to the defendants' general and special demurrers.
DECIDED JANUARY 28, 1958 — REHEARING DENIED FEBRUARY 13, 1958.
Horace W. Quarles, who was for some years Chief of Police of Rome, Georgia, and who is now holding a position in the employment of the City of Rome entitled "Investigator of Taxes" and in such position is under the direct supervision of the Civil Service Board of the City of Rome and the present Chief of Police of the City of Rome, brought the present action seeking a declaratory judgment with regard to his rights under the Act of 1950 (Ga. L. 1950 p. 50), as amended (Ga. L. 1951, pp. 472, 474; Ga. L. 1956, pp. 280, 285). The plaintiff alleges that he is a "peace officer" and is entitled to all the rights accruing to "peace officers" as defined in such Act, and further alleges that after the defendants, the Board of Commissioners of the Peace Officers' Annuity and Benefit Fund of Georgia, had accepted his dues (from the inception of such fund) as a member thereof until May 1957, that they refunded his payments and informed him that his services as a "peace officer" were not creditable for membership or benefits in such fund. The plaintiff then alleges facts to show a justiciable controversy, that he has no adequate remedy at law or equity, that a determination of the issues between him and the defendants is necessary to protect him from uncertainty and insecurity with respect to future acts and conduct on his part, and that without such determination and direction by the court the plaintiff's interest will be jeopardized. The defendants filed general and special demurrers to the plaintiff's petition which were overruled, and it is to this judgment that the defendants except.
1. The plaintiff's petition does not allege, as contended by the defendants, that the defendants are estopped by their actions to deny that he is a "peace officer" within the meaning of the Peace Officers' Annuity and Benefit Fund of Georgia (Code, Ann., Ch. 78-9). Accordingly the decision of the Supreme Court in the case of McCallum v. Almand, 213 Ga. 701 ( 100 S.E.2d 924), is not applicable, nor does such petitioner plead in the alternative so as to require a ruling that if one theory is bad the whole pleading is bad. See Richards Associates, Inc. v. Studstill, 212 Ga. 375 ( 93 S.E.2d 3).
The only question here presented by the general demurrer to the petition as a whole is whether the plaintiff, under his allegations, is entitled to a declaratory judgment.
"Whether or not the plaintiff is entitled to a declaratory judgment upon a hearing, is not dependent upon a determination of whether or not his contention in the controversy be a correct one. It may be found untenable upon the hearing, but he will not for that reason be sent from court, but is entitled to have the court, upon evidence and not upon the hearing of a general demurrer, declare his rights or lack of any right in the premises. To withstand a general demurrer it is only necessary that the plaintiff show an existing justiciable controversy, as provided by the Declaratory Judgment Act. It is not necessary that the petition go further and show that the plaintiff's contention is correct. As said in Felton v. Chandler, 75 Ga. App. 354, 362 ( 43 S.E.2d 742), the judge `was concerned merely with the question of whether the plaintiff should be given an opportunity to prove the allegations of his petition and whether under any of the circumstances, if proved, the court should enter some judgment.' (Italics ours.)." Georgia Casualty c. Co. v. Turner, 86 Ga. App. 418, 422 ( 71 S.E.2d 773).
The petition in the present case alleged the necessary facts to present a case wherein the plaintiff was entitled, under the Declaratory Judgment Act of 1945 (Ga. L. 1945, p. 137; Code, Ann., Ch. 110-11), to a declaration of his rights and the trial court did not err in overruling the defendants' general demurrers to such petition.
2. The numerous general and special demurrers interposed by the defendants to the various paragraphs and parts of paragraphs of the plaintiff's petition have been carefully examined and are without merit. Accordingly, the trial court did not err in overruling such demurrers.
The ruling made in the first division is not a ruling that the plaintiff is entitled as a matter of law, even if his contentions are unrebutted, to a declaration that his contentions are correct, but it is merely a ruling that he is entitled, under the allegations of his petition, to a declaration as to what his rights are under the facts as they may be established on the trial.
Judgment affirmed. Felton, C. J., and Quillian, J., concur.