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Smith v. Ouzts

Supreme Court of Georgia
May 7, 1958
103 S.E.2d 567 (Ga. 1958)

Summary

concluding that the board of education had no authority to agree to limit location of a school building as “any contract which controls or restricts the discretion vested in a public officer or public body is contrary to public policy and void”

Summary of this case from Miller Cnty. Bd. of Educ. v. McIntosh

Opinion

20032.

ARGUED APRIL 14, 1958.

DECIDED MAY 7, 1958.

Petition for injunction. Washington Superior Court. Before Judge Humphrey. January 10, 1958.

D. E. McMaster, Emory L. Rowland, Larsen Larsen, for plaintiffs in error.

Irwin L. Evans, T. A. Hutcheson, B. D. Murphy, Powell, Goldstein, Frazer Murphy, contra.


The judgment of the court below sustaining the general demurrer to the petition in this case was not error for any reason assigned.

ARGUED APRIL 14, 1958 — DECIDED MAY 7, 1958.


L. W. Smith, and others who describe themselves as citizens and taxpayers of Washington County, Georgia, brought this suit against W. B. Ouzts, Jr., Superintendent of Public Schools of Washington County, certain named persons who are described as members of the Board of Education of Washington County, and the State School Building Authority of Georgia, seeking to enjoin the location and construction of a consolidated White high school at a site designated as the Riddleville Road section of Sandersville, Georgia. The petition alleged that the petitioners and others had in 1952 brought suit to enjoin the location and construction of the said school at the designated site in Sandersville, Georgia, and had petitioned for intervention in a bond-validation proceeding in Fulton County, Georgia, where it was sought to validate bonds to finance the construction of said school. It is alleged that the petitioners were induced to withdraw their petitions in both cases by an alleged agreement and contract between the parties which was incorporated in a resolution of the Washington County Board of Education, to the effect that said school would not be located anywhere within the limits of either Sandersville or Tennille, Georgia; that all parties to the agreement received substantial benefits as consideration for the agreement; and that the agreement had the full consent and approval of the State Board of Education and the State School Building Authority.

It is further alleged that, notwithstanding the above contract and agreement, the Washington County Board of Education did in 1957 determine to locate said high school at the Riddleville Road site in Sandersville, Georgia, in violation of said contract and agreement; that the petitioners filed their objections to the selected site and, upon a hearing, the Washington County Board of Education again approved the Riddleville Road site, and that upon appeal to the State Board of Education, this decision was approved. Petitioners then brought their suit to enjoin the construction of the school at the selected site.

By amendment, the petition set up that the selected site was near a kaolin mining operation and was unfit and unsuitable as a site for a school and was dangerous to the health of the children in attendance; that the majority of the children who would attend the school lived in Sandersville and Tennille, Georgia, and that placing the school in either city would result in hardship to the children in the other city, and that there were numerous suitable sites between the two cities. It is alleged that these facts are well known to the defendants, and that their actions have been motivated by their "selfish interest in the growth and prosperity of the City of Sandersville with complete disregard for the health, safety and welfare of the school students of Washington County." It is further alleged that the defendants acted fraudulently in inducing the dismissal of the former petition for the purpose of depriving the petitioners of their legal rights.

By amendment, a count two was added, in which it was alleged that the resolution locating the school at the Riddleville Road site in Sandersville, Georgia, was not legally adopted and certified, but that the vote was actually against the location because one of those board members voting in favor of the resolution was at that time and was throughout 1957 not a resident of Washington County, but was a resident of Baldwin County, Georgia, and was not, therefore, legally a member of the Washington County Board of Education; that the vote on the resolution was two in favor and two against, with the chairman voting to break the tie in favor of the resolution; that, without the illegal vote of the board member living in Baldwin County, the vote would have been two to one against the resolution with no occasion for the chairman to vote to break the tie.

Defendants filed their demurrers to the petition as amended, and, after a hearing, the general demurrer was sustained. The exception here is to that judgment.


1. In the view we take of this case, three questions are decisive. The first is whether or not the Washington County Board of Education had authority to enter into the contract or agreement as to the selection of the site for the school in question. Assuming that the alleged contract or agreement and resolution amounted to a contract, it must be construed as a contract whereby the Washington County Board of Education, and the other defendants, in so far as the petition seeks to hold them to its terms, undertook to limit its discretion or to divest itself of the discretionary power vested in it by law in so far as the selection of the site of this school is concerned. Obviously such a contract or any contract which controls or restricts the discretion vested in a public officer or public body is contrary to public policy and void. See 43 Am. Jur. 104, § 295; 46 C. J. 1034, § 296; Macon Consolidated Street R. Co. v. Mayor c. of Macon, 112 Ga. 782 ( 38 S.E. 60); Barr v. City of Augusta, 206 Ga. 750 ( 58 S.E.2d 820); Aven v. Steiner Cancer Hospital, 189 Ga. 126 ( 5 S.E.2d 356).

Plaintiffs in error contend, however, that this rule should not be applied to them in the instant case, because the alleged contract in question resulted from a compromise and settlement of a pending law suit, and that, if the Board of Education can sue and be sued, it can compromise a pending suit and be bound thereby. This argument overlooks the fact that a court even by a judgment is not authorized to take away or control the discretionary power vested by law in the County Board of Education with relation to the control and operation of the schools within its jurisdiction, except to prevent a violation of the law. Under the allegations of the petition in the instant case, the former suit for injunction was based upon the theory that the County Board of Education had acted arbitrarily and without authority of law in locating the school at the chosen site without giving the petitioners an opportunity to be heard upon the objections filed by them. If they had successfully prosecuted that suit to its conclusion, the most that they would have been entitled to would have been an injunction restraining the location and construction of the school at the designated site until they had received a hearing before the County Board of Education with the right to appeal to the State Board of Education. They would not have been entitled to an injunction restraining forever the location of a school at the site. Conceding, but not deciding, that the County Board of Education has a right by contract to compromise and settle a pending suit involving its discretionary powers, under the theory presented by the plaintiffs in error, the most that they would have been entitled to agree to would have been to rescind the location of the school and grant to the petitioners a hearing upon their objections; at which time the board would have been required to exercise the discretion vested in them by law. Petitioners have now had a hearing before the County Board of Education, at which, presumably, they presented all of their objections to the location of the school in question. The decision of the County Board of Education has been approved by the State Board of Education. They have thus received everything that a successful prosecution of the former suit would have given them. In so far as the Board of Education might have undertaken by the contract in question to divest itself of the discretionary power vested in it by law, it was, under the authorities above cited, unauthorized by law, contrary to public policy, and void.

2. Other questions with reference to the fitness and suitability of the selected site are wholly within the discretion of the County School Board and within the jurisdiction of the County School Board and the State Board of Education sitting as a tribunal to hear and decide matters arising under the school law, and in the absence of a showing of a violation of the law, a court of equity is not authorized to interfere, and the decision of the State Board of Education is final. Board of Education of Long County v. Board of Education of Liberty County, 173 Ga. 203 ( 159 S.E. 712): Boney v. County Board of Education, 203 Ga. 152 ( 45 S.E.2d 442); Meadows v. Board of Education, 136 Ga. 153 ( 71 S.E. 146); Boatright v. Yates, 211 Ga. 125 ( 84 S.E.2d 195); Patterson v. Boyd, 211 Ga. 679 ( 87 S.E.2d 861); McKenzie v. Walker. 210 Ga. 189 ( 78 S.E.2d 486); and the many cases cited in the above authorities. The allegations of the instant petition do not allege any action of the County Board of Education which amounts to a violation of the law, and, in accordance with the above-cited authorities, a court of equity will not interfere with or control the actions of the county board.

3. Plaintiffs in error insist that the vote by the County Board of Education and the certification by the County School Superintendent to the State Board of Education to the effect that the board had selected the disputed site was illegal because one of the members who voted for the resolution was at that time and at all times throughout 1957 not a resident of Washington County, but was a resident of Baldwin County, Georgia. It is contended that under Code § 32-903 the board member immediately vacated his office when he removed from Washington County. There is no merit in this contention. Code § 32-903 is not applicable to the facts in the instant case. This section deals with the removal of a member of the Board of Education from one district to another district or municipality within the limits of the county in which he serves. The Code section dealing with an incumbent ceasing to be a resident of the locality in which he was elected is Code § 89-501 (5), which reads as follows: "All offices in the State shall be vacated — (5) Nonresidence. — By the incumbent ceasing to be a resident of the State, or of the county, circuit, or district for which he was elected. In the first case, the office shall be vacated immediately; in the latter cases, from the time the fact is judicially ascertained."

It will be noted that only in the case of an incumbent ceasing to be a resident of the State of Georgia does the office immediately become vacant. In all other cases, which includes the case here under consideration, the office does not become vacant until the vacancy is judicially ascertained. In the instant case, there is no allegation to the effect that the vacancy of the office in question has been judicially ascertained. Therefore, there is no merit in the contention that the vote was illegally taken and counted and was illegally certified to the State Board of Education.

4. From what has been said above, the judgment of the court below sustaining the general demurrer and dismissing the petition was not error.

Judgment affirmed. All the Justices concur.


Summaries of

Smith v. Ouzts

Supreme Court of Georgia
May 7, 1958
103 S.E.2d 567 (Ga. 1958)

concluding that the board of education had no authority to agree to limit location of a school building as “any contract which controls or restricts the discretion vested in a public officer or public body is contrary to public policy and void”

Summary of this case from Miller Cnty. Bd. of Educ. v. McIntosh
Case details for

Smith v. Ouzts

Case Details

Full title:SMITH et al. v. OUZTS et al

Court:Supreme Court of Georgia

Date published: May 7, 1958

Citations

103 S.E.2d 567 (Ga. 1958)
103 S.E.2d 567

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