Opinion
19916.
ARGUED JANUARY 13, 1958.
DECIDED MARCH 7, 1958.
Petition for declaratory judgment. Before Judge Brooke. Gilmer Superior Court. August 30, 1957.
Eugene Cook, Attorney-General, Hamilton B. Stephens, Assistant Attorney-General, for plaintiff in error.
Ross Arnold, Robert B. Harris, Arnold Harris, McCutchen Dimmock, H. G. Vandiviere, H. L. Buffington, Jr., contra.
The petition did not set out a cause of action for declaratory judgment, and the trial court properly sustained the general demurrers of the defendants.
ARGUED JANUARY 13, 1958 — DECIDED MARCH 7, 1958.
The State of Georgia, acting by and through the Attorney-General, brought a petition for declaratory judgment, naming as defendants The Hospital Authority of Gilmer County, Watkins Memorial Hospital, Inc., Georgia Conference Association of Seventh-Day Adventists, and The Cumberland Conference Association of Seventh-Day Adventists.
It was alleged: The Hospital Authority of Gilmer County was created under the provisions of the Hospital Authorities Law of 1941 (Ga. L. 1941, pp. 241-250), and activated by a resolution of the Gilmer County Board of Roads and Revenues on January 8, 1951. On September 21, 1952, The Hospital Authority of Gilmer County and the Georgia Department of Public Health entered into a contract for the construction and equipment of a hospital, financed in part by a grant in aid by the State of Georgia of $118,129.09. One of the terms of the contract was that the hospital authority would operate for a term of not less than 20 years. The hospital began its operation on July 17, 1955, under the name of Watkins Memorial Hospital. On January 2, 1957, The Hospital Authority of Gilmer County submitted to the State Department of Public Health a proposed lease of the hospital to The Watkins Memorial Hospital, Inc., which proposed lease was disapproved by the Department of Public Health. On January 24, 1957, a lease contract was entered into between The Hospital Authority of Gilmer County and The Watkins Memorial Hospital, Inc., and this lease was executed, and the hospital placed in control of the lessee, without the knowledge, consent, or approval of the State Board of Health. The Watkins Memorial Hospital, Inc., is a private corporation, incorporated by named persons, who are officers, employees, or members of the defendant corporations of the Seventh-Day Adventist Church, and the Seventh-Day Adventist Church formulates the policies and controls the practices of the corporation in operating the hospital. The ethical and religious standards of the Seventh-Day Adventist Church forbid or discourage the eating of meat, and the hospital has discontinued the serving of pork bacon to patients, even when such food was prescribed by the attending physician, and plans to discontinue serving all meats in the future. Religious literature of a sectarian nature is distributed to patients, their families, and friends. Professional personnel of the hospital has been replaced by members of the Church wherever possible. Patients of the Seventh-Day Adventist faith are brought from points as far as 150 miles away to be cared for in the hospital. The medical director of the hospital uses two rooms in the hospital for the private practice of medicine. These and other practices constitute a "change of use" within the meaning of the act of 1949 (Ga. L. 1949, p. 265; Code, Ann., § 99-1607). On March 28, 1958, the Department of Public Health called upon The Hospital Authority of Gilmer County to seek cancellation of the lease and resume operation of the hospital. The authority failed and refused to do this. The authority violated its contract with the Department of Public Health when it ceased to operate the hospital within 20 years of the date it was opened, and violated the terms of the act of 1949 when it permitted a public hospital to be used for a purpose contrary to the use for which the State grant was made, such change not having been approved by the State Board of Health. In permitting the medical director to use space in the hospital for his private practice, the defendants have violated Art. VII, Sec. III, Par. IV (Code, Ann., § 2-5604) of the Constitution of Georgia. In leasing a public hospital to a private sectarian institution the hospital authority has violated Art. VII, Sec. V, Par. I (Code, Ann., § 2-5801), and Art. I, Sec. I, Par. XIV (Code, Ann., § 2-114) of the Constitution of Georgia. In leasing a public hospital to a sectarian institution, and in permitting the hospital to be operated as alleged, the defendants have violated the Fourteenth Amendment to the Constitution of the United States.
The petitioner contends that: the lease contract is void; the hospital should be returned to the management and control of the hospital authority; the authority has no right to sell, lease, or make any change in use of the hospital facilities as contemplated by the act of 1949 or its contract with the State Department of Public Health. The Hospital Authority of Gilmer County and the other defendants contend that the authority was authorized to lease the facilities, and that the hospital is being operated in a manner consistent with statutory and contractual requirements. The petitioner is faced with a situation in which it is asked to approve, retrospectively, a plan under which the possession and operation of a hospital, built in whole or in substantial part with public funds, is placed in a private corporation under a lease contract, or to suggest how the authority may provide for the operation of the hospital by some other contractual arrangement. The situation is one of uncertainty and insecurity with respect to the position of the petitioner, and poses questions with regard to its future conduct in discharging its duty under Code (Ann.) § 99-1607 and other provisions of the Constitution and statutes of this State, "which action without the direction of the court prayed for herein may reasonably jeopardize the petitioner's interests." The facts alleged necessitate a determination of disputes, not merely for the purpose of enforcing accrued rights, but in order to guide the petitioner and protect it from uncertainty and insecurity with respect to its future conduct in regard to the 56 other hospitals which have been constructed, or are in the course of construction, with the aid of the State.
It was prayed that the court enter a judgment declaring: The Hospital Authority of Gilmer County is a public body corporate and politic and The Watkins Memorial Hospital is public property; The Watkins Memorial Hospital, Inc., is a private sectarian corporation and the operating agent for the corporations named of the Seventh-Day Adventist Church; the hospital authority was and is without legal authority to lease the hospital to the church group or its operating agent; the lease is void; the hospital authority is without legal authority to transfer the possession and operation of the hospital facilities, and may not legally change the use or type of operation from that specified in its contract, the statute under which it was entered into, and the grant in aid made; the manner in which the hospital is being operated is in violation of the provisions of the State and Federal Constitutions enumerated in the petition. It was also prayed that the defendants be temporarily enjoined from engaging in named acts and practices pending the final disposition of the action.
The defendants, Cumberland Conference Association of Seventh-Day Adventists and Georgia Conference Association of Seventh-Day Adventists, demurred generally to the petition, on the grounds that no cause of action was set forth, and that no cause of action was set forth as against them. The Hospital Authority of Gilmer County and The Watkins Memorial Hospital, Inc., filed general and special demurrers.
The trial judge sustained the general demurrers of all the defendants. Some of the special grounds of demurrer were sustained, and some were overruled. In its bill of exceptions the State of Georgia excepts to the sustaining of the general demurrers of all the defendants, and to the sustaining of certain special demurrers.
On February 7, 1949, the General Assembly approved an act to authorize the State of Georgia to make grants to assist in the construction of public hospitals and public health centers. Ga. L. 1949, pp. 263-266. In this act the State Board of Health was designated as the agency to administer the grants and to make regulations for the administration of the construction program. This act was amended in 1953 (Ga. L. 1953, Jan.-Feb. Sess., pp. 214-215), and again in 1955 (Ga. L. 1955, pp. 410-414).
Section 6 of the act of 1955 (Code, Ann., § 99-1607 (d)), amending section 7 (d) of the act of 1949, reads as follows: "If any publicly owned and operated hospital, health center, diagnostic or treatment center, rehabilitation facility or nursing home for which funds have been paid under this section shall at any time within 20 years after the completion of construction be sold or used for any purpose contrary to the provisions under which the grant was made, and such change in use is not approved by the State Board of Health, the State of Georgia shall be entitled to recover from either the transferor or the transferee such per centum of the then value of such publicly owned and operated hospital, health center, diagnostic or treatment center, rehabilitation facility or nursing home as the State grant bore to the total construction cost of that publicly owned and operated hospital, health center, diagnostic or treatment center, rehabilitation facility, or nursing home, as determined by agreement of the parties or by action brought in court in the due process of law."
The purpose of the Declaratory judgments Act (Ga. L. 1945, pp. 137-139; Code, Ann., Ch. 110-11) is "to settle and afford relief from uncertainty and insecurity with the respect to rights, status and other legal relations." Ga. L. 1945, p. 139 (Code, Ann., § 110-1111). In such actions disputed issues of fact may be determined by a jury (Ga. L. 1945, pp. 137, 138; Code, Ann., §§ 110-1103, 110-1104), but the mere fact that there is a dispute as to issues of fact could not give the necessary element of "uncertainty and insecurity" to entitle a petitioner to maintain a declaratory-judgment action.
In Zeagler v. Willis, 212 Ga. 286 ( 92 S.E.2d 108), it was stated: "The plaintiff's petition . . . fails to show or allege that he is without an adequate remedy at law or in equity, and shows that whatever rights the parties may have are accrued already, and no facts or circumstances are alleged to show any necessity for a determination of any dispute to guide and protect the petitioner from uncertainty and insecurity with respect to the propriety of some future act or conduct which is properly incident to his alleged right, and which future action without such direction might reasonably jeopardize his interest. Accordingly, the trial judge properly sustained the defendant's general demurrer to the petition, since it sets forth no ground for a declaration of rights under the Declaratory Judgment Act." See also Sumner v. Davis, 211 Ga. 702 ( 88 S.E.2d 392); Brown v. Cobb County, 212 Ga. 172 ( 91 S.E.2d 516).
In the present case all of the allegations of the petition amount to but one assertion, that there has been a change in use of the hospital facilities, not approved by the State Board of Health, by reason of the lease agreement between The Hospital Authority of Gilmer County and The Watkins Memorial Hospital, Inc., the latter corporation being alleged to be a sectarian institution affiliated with named corporations of the Seventh-Day Adventist Church. The quoted provision of the 1955 act (Code, Ann., § 99-1607 (d)) plainly states the remedy of the State where there has been a change of use, that is, to recover from the transferor or transferee such per centum of the value of the hospital, at the time of the change of use, as the State grant bore to the total construction cost of the hospital, "as determined by agreement of the parties or by action brought in court in the due process of law."
Since the statute under which the State of Georgia through the State Board of Health makes grants in aid to hospital authorities provides the recourse of the State in case of a change of use not approved by the State Board of Health, the petitioner needs no declaratory judgment to determine what legal remedy it has. In so far as the assertion is made that a declaratory judgment is needed to protect the petitioner from uncertainty and insecurity with respect to its future conduct in regard to other hospitals which have been constructed, or are to be constructed, with the aid of State funds, the Declaratory Judgments Act makes no provision for a declaratory judgment which is merely advisory. Liner v. City of Rossville, 212 Ga. 664 ( 94 S.E.2d 862).
The trial court did not err in sustaining the general demurrers to the petition.
Judgment affirmed. All the Justices concur.