MURDOCK v. PERKINS et al.; PETERS et al. v. PERKINS et al.; and vice versa, 219 Ga. 756

Mobley, Justice. The writ of error in the case of The State Board v. The County Board, with the cross bill, and the case of J. F. Murdock v. Floyd County Board will be disposed of by this decision. We first consider exceptions to the judgment overruling the general demurrer of the State Board of Education to the petition brought by the Floyd County Board of Education and the cross bill therein. The questions presented in the main bill are: 1. Does the petition state a cause of action for equitable relief? 2. Is this a suit against the State of Georgia? 3.

Did the Board of Education have the legal authority to review and reverse its previous decision affirming the action of the Floyd County Board of Education in dismissing the Superintendent of the Floyd County Schools? The petition does state a cause of action for equitable relief. There is no merit in the contention that the plaintiffs had an. adequate remedy at law.

The County Board sought to enjoin acts stemming from an allegedly void judgment of the State Board of Education on grounds that said judgment was rendered by the Board when it lacked the legal authority to reconsider and reverse its prior decision, and that their judgment was therefore void and of no force and effect.

Code § 37-120- provides, “Equity will not take cognizance of a plain legal right where an adequate and complete remedy is provided by law; but a mere privilege to a party to sue at law, or the existence of a common law remedy not as complete or effectual as the equitable relief, shall not deprive equity of jurisdiction.” See Hollingshead v. McKenzie, 8 Ga. 457 (2); Markham v. Huff, 72 Ga. 874 (1); Cummings v. Robinson, 194 Ga. 336 (21 SE2d 627).

Assuming, without deciding, that there was a remedy at law by either certiorari or quo warranto as is contended, such remedies nevertheless would not have afforded an adequate remedy. These remedies at law were not adequate to immediately and fully restrain Murdock from interfering with the County Board in the operation of the schools by assuming or attempting to assume the office of Superintendent of Schools and carrying on the duties of the office, and by claiming present and past pay as such. In Cummings v. Robinson, 194 Ga. 336, supra, petitioner sought to enjoin the defendant 'from going into, taking

part in, or otherwise seeking to exercise the functions of a county commissioner. The contention on demurrer was that the petition failed to set out a cause of action for equitable relief and that there was an adequate remedy at law by quo warranto. This court in holding that the petition stated a cause of action for injunctive relief stated, “In such case the writ of quo warranto, though itself a speedy remedy, could not supply that immediate and preventive relief which could be granted through the writ of injunction, and thus would not be as complete or effectual.” See also cases cited therein at page 346.

In Moultrie Milk Shed, Inc. v. City of Cairo, 206 Ga. 348, 351 (57 SE2d 199), injunction was sought to prevent the defendants from acting to enforce a void city ordinance. The defendants contended that certiorari was the sole available remedy; therefore, petitioner was not entitled to equitable relief.

In reply thereto this court stated, “As to the specific matters embraced in cases that are being reviewed by certiorari, the position of counsel is sound; but as to the injuries subsequent thereto resulting from the acts or threatened acts of the defendants, the petitioner is entitled to relief in equity . . . provided it be held that the ordinance in question is void.” Injunction afforded the most effectual and complete relief in this case, as well as the only adequate remedy, because neither certiorari nor quo warranto would have provided the instant relief needed to prevent injurious acts by Murdock based on a void judgment.

The contention that the present suit is in effect one against the State, instituted without its consent, and consequently not maintainable, is without merit. The real test of whether or not an action is one against the State is stated in Georgia Public Service Commission v. Atlanta Gas Light Co., 205 Ga. 863 (55 SE2d 618), as follows: “In determining whether the action is one against the State where the suit is against an agency or officer of the State, the nature of the suit or relief prayed must be considered, and not merely the position or character of the agency or officer against whom the action is brought.

The question is, does the action affect a contract or property right of the State, so that a judgment against the State agency or officer will bind the State or control future State action? The State’s interest must be of such substantial nature that the result of the action affects it as a sovereign entity.” The instant case does not affect a contract or property right of the State. The judgment does not bind the State or control future State action, but merely settles a procedural matter relating to the jurisdiction of the State Board of Education to modify or reverse a previous decision made by it.

The State’s interest is not of such a substantial nature that the result of the action affects it as a sovereign entity.

This is a suit against the ten members of the State Board of Education, who, it is alleged acted illegally and without lawful authority for the reason that they were without jurisdiction to reverse their previous order affirming the County Board of Education of Floyd County. “Injunction will lie, and it is the appropriate remedy to be employed, to prevent the commission of a wrongful act by an officer or agent of this State, even when acting under color of his office but without lawful authority, and beyond the scope of his official power.” Moore v. Robinson, 206 Ga. 27 (1a) (55 SE2d 711). See also Irwin v.

Crawford, 210 Ga. 222, 225 (78 SE2d 609), where this court said, “It is likewise clear that if the proposed action of the county board is dealing with a matter over which the board had no jurisdiction and would be illegal or contrary to law, the trial court properly interfered by injunction.” Clearly, this action seeking to enjoin the illegal acts of the members of the State Board, to wit the rendering of a decision which they were without jurisdiction to do, was not subject to general demurrer on the ground that it was a suit against the State.

Material to the answer to the question of whether the State Board had lawful authority to review its previous decision, affirming the local Board’s action in dismissing the Superintendent of Schools is whether the decision of the Board was a judicial act rendered by it while acting in a quasi-judicial capacity. “The performance of judicial acts under authority conferred upon courts is judicial in character, while the performance of judicial acts under authority conferred upon other persons, boards, or tribunals is quasi-judicial. . .

The basic distinction between an administrative and a judicial act by officers other than judges is that a quasi-judicial action, contrary to an administrative function, is one in which all parties are as a matter of right entitled to notice and to a hearing, with the opportunity afforded to present evidence under judicial forms of procedure; and that no one deprived of such rights is bound by the action.” South View Cemetery Assn. v. Bailey, 199 Ga. 478, 480 (2), 481 (34 SE2d 863). See also Mayor of Union Point v. Jones, 88 Ga. App. 848 (3) (78 SE2d 348); Gill v. Mayor &c. of Brunswick, 118 Ga. 85 (44 SE 830).

Code § 32-910 (as amended by Ga. L. 1961, p. 39), which authorizes the State Board of Education to review on appeal decisions of the County Boards of Education of the State provides that, “the State Board shall provide by regulation for notice to the parties and hearing on the appeal.” The action of the State Board in reviewing the decision of the Floyd County Board was quasi-judicial in nature, as it comes clearly within the definition of quasi-judicial as stated in the foregoing cases.

Where as here, the State Board was exercising judicial powers in rendering its original decision affirming the Floyd County Board, the writ of certiorari was a remedy available to Murdock. Code §§ 19-101, 19-203; City of Cedartown v. Pickett, 193 Ga. 840, 842 (1) (20 SE2d 263). However, he did not avail himself of this remedy during the 30 days allowed for applying for the writ (Code Ann. § 19-209); instead both he and the State Board rely upon a decision of the Board rendered more than 30 days after its original decision, which the latter decision purported to reverse.

The question, therefore, is whether under these circumstances the Board had authority to reconsider and reverse its previous decision and enter an order reversing the action of the Floyd County Board of Education.

While there is a difference of opinion among various state courts as to -whether an administrative agency exercising functions of a judicial nature has the inherent right to grant a rehearing or otherwise reconsider a previous decision (see 73 ALR2d 941, Ann.), we are of the opinion that in this State, in the absence of specific statutory authority, an administrative board having made a judicial determination, as was done here, has no lawful authority to reverse that decision. This court in discussing the construction of statutes clothing the State Board of Education with power, in Conley v.

Brophy, 207 Ga. 30, 33 (60 SE2d 122) stated, “We are not unmindful of the modern tendency to clothe boards and bureaus composed of men not trained in the law with judicial functions. This tendency we consider dangerous, and for this reason, the statutes will be strictly construed.” There is no Georgia statute that gives the State Board of Education the power to reconsider and change its decisions rendered while acting in a quasi-judicial capacity. Neither Code Ann. § 32-1008, which allows appeal to the State Board, nor Code Ann. § 32-9101 (as amended by Ga.

L. 1961, p. 39) contains any express provision for reconsideration by the Board of its decisions, and under a strict construction of the statutes relating to the State Board of Education this power may not be implied. See Conley v. Brophy, 207 Ga. 30, supra. As to the position that inferior tribunals acting judicially cannot grant a rehearing and that their jurisdiction terminates with their decision, see 73 ALR2d 939, 946. This court in Gravitt v. Georgia Cas.

Co., 158 Ga. 613 (123 SE 897), held that the Georgia Industrial Commission (now the State Board of Workmen’s Compensation), being an administrative body, possesses only such jurisdiction, powers, and authority as are conferred upon it by the legislature, or such as arise therefrom by necessary implication to cany out the powers granted, and that in the absence of specific authority to reopen or rehear a case 'on its merits, in which a decree has been entered, the Board does not have authority to reconsider the case except on a change in condition, which is specifically authorized by statute.

Code § 114-709, (Sec. 45 of Ga. L. 1920, pp. 167, 191). To the same effect see: New Amsterdam Cas. Co. v. McFarley, 191 Ga. 334 (12 SE2d 355); Lumbermen’s Mut. Cas. Co. v. Cook, 195 Ga. 397, 400 (24 SE2d 309); Liberty Mut. Ins. Co. v. Morgan, 199 Ga. 179 (33 SE2d 336); Bender v. Anglin, 207 Ga. 108, 114 (60 SE2d 756). The General Assembly provided a remedy by writ of certiorari for redress from the act of the State Board in affirming the dismissal of the School Superintendent and made no statutory provision for the State Board to reconsider or reverse the decision from which the writ could issue.

Having dealt with the subject matter giving rise to this litigation, we would not conclude that the General Assembly did not deal with it fully, or as intended, or that more was intended than was done. The wisdom of limiting the Board to the exercise of power expressly granted by the General Assembly is apparent when it is realized that otherwise there would be no limitation upon the exercise of the power, no provisions for appropriate procedure, that it could be exercised at any time after the original decision was made, and as many times as the Board wished, and that there would be no end to litigation.

See 73 ALR2d 943 and cases cited. The State Board of Education was without lawful authority to reconsider and reverse its original decision of October 16, 1963, affirming the action of the Floyd County Board in dismissing J. F. Murdock as the Floyd County Superintendent of Schools. 4. Accordingly, for the foregoing reasons, the judgment of the trial court overruling the general demurrer to the petition is correct, and the judgment on the main bill is affirmed. 5.

Since the judgment of the court below was affirmed on the main bill, and the effect of the affirmance does not leave the case to be tried again, Code Ann. § 6-901, the cross bill is dismissed. 6. The vital and controlling question presented by the bill of exceptions in each of these cases — whether the State Board of Education had lawful authority to reconsider and reverse its decision of September 9, 1963, affirming the action of the Floyd County Board in removing J. F. Murdock from office, having hereinbefore been decided in the case of State Board v.

Floyd County Board (Case No. 22379) adversely to the contentions of the State Board and Murdock, the question of the right of Murdock to be reinstated as Superintendent of Schools has been adjudicated adversely to him. Thus even though the answers should be favorable to Murdock on the questions raised by his bill of exceptions, the rulings made could not possibly result in any substantial benefit to him; therefore, this court will not pass upon any of the questions raised in his bill of exceptions and the judgment will be affirmed. See Smith v. Robinson, 212 Ga. 761 (2) (95 SE2d 798), and cases cited.

In cases Nos. 22379 and 22380 the judgment on the main bill is affirmed, and the cross bill is dismissed. Judgment in case No. 22361 is affirmed. All the Justices concur, except Duck-worth, C. J., and Head, P. J., who dissent.