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COLSTON et al. v. HUTCHINSON et al.
Injunction. Before Judge Rowland. Johnson Superior Court. August 25, 1951.
DUCKWORTH, Chief Justice.
For a breach of duty, under Code (Ann. Supp.) 32-938 (Ga. L. 1919, p. 331; 1946, pp. 206, 208), adequate remedies at law are available; and it was error to grant an interlocutory injunction to prevent that breach upon a petition seeking injunction, which was brought by residents and taxpayers of that portion of the county embraced within the school district.
The petition of approximately 50 persons suing as residents and taxpayers of Johnson County and within the Adrian School District, brought against members of the Johnson County Board of Education and the Superintendent, alleges in substance: that for many years the Adrian School District, comprising parts of Emanuel and Johnson Counties with the schoolhouse near the Johnson County line but located in Emanuel County, has been attended by the children from each county residing in the district, and that the school is well equipped and affords proper facilities for the education of the children; that the defendants have passed a resolution by the terms of which it was provided that all children residing in Johnson County and within the Adrian School District shall thereafter be transported long distances to other schools in Johnson County which are greatly inferior to the school at Adrian. They base their suit expressly upon the provisions of Code (Ann. Supp.) 32-938 (Ga. L. 1919, p. 331; 1946, pp. 206, 208), and pray for injunction to prevent the defendants from carrying into effect the resolution. At the interlocutory hearing, the trial judge refused to pass upon the defendants' demurrer, challenging the petitioners' right to equitable relief upon the ground that there were available to them adequate remedies at law. After hearing evidence supporting in the main the allegations of the petition, an interlocutory injunction was granted and the exception here is to that judgment.
The Constitution of 1945 (Code, Ann., 2-6801) declares that "Each county, exclusive of any independent school system now in existence in a county, shall compose one school district and shall be confined to the control and management of a County Board of Education." Thus, by the Constitution, is the control and management of the public schools, other than independent school systems existing in 1945, placed under the exclusive control and management of the county boards of education. By statute (Code, Ann. Supp., 32-910; Ga. L. 1919, p. 324; 1947, pp. 1189, 1190), rulings by the county boards of education are reviewable by the State Board of Education. See Boney v. Bd. of Educ. of Telfair County, 203 Ga. 152 (45 S. E. 2d, 442). Repeatedly and uniformly this court has held that the control and management of the public schools is in the county boards of education, and will not be interfered with by the courts except in cases where that control and management is contrary to law. Keever v. Bd. of Educ. of Gwinnett County, 188 Ga. 299, 301 (3 S. E. 2d, 886); Fordham v. Harrell, 197 Ga. 135 (28 S. E. 2d, 463); Boney v. Bd. of Educ. of Telfair County, 203 Ga. 152 (supra); Pass v. Pickens, 204 Ga. 629 (51 S. E. 2d, 405); Burton v. Kearse, 204 Ga. 765 (51 S. E. 2d, 796). But the present action alleges that the county board of education has failed and refused to perform duties laid upon it by provisions of Code (Ann. Supp.) 32-938 (Ga. L. 1919, p. 331; 1946, pp. 206, 208). It is contended that the defendants, under the Code section relied upon, were under a duty to send the children residing in Johnson County and within the Adrian School District to the Adrian School, and the petitioners seek to enjoin them from sending those children to other schools in Johnson County. Counsel for the petitioners rely upon the decision in McRae v. Grace, 179 Ga. 872 (177 S. E. 707), and assert that the defendants can not lawfully withdraw said children from the Adrian School without the consent of the school authorities of Emanuel County. Without here going into the decision in that case, where it appeared that by certain actions of the counties involved, the school was established, in the present case there is nothing to indicate the method of establishing the Adrian School. It might be observed that in Fordham v. Harrell, 197 Ga. 135 (supra), this court upheld action by a county board of education very similar to the action here complained of. However, well-established rules of law prevent our ruling upon the contention made by the petitioners. Equity will grant relief only where there is no available and adequate and complete remedy at law. Code 37-102. In the identical Code section upon which the petitioners base their case (Code, Ann. Supp., 32-938), it is provided that, if the county authorities fail to arrange or contract for the attendance of the children in the school in question, parents of those children may compel the county board by mandamus to so provide for such school attendance upon the part of the children, or they may appeal to the State Board of Education, either of which remedies at law would be adequate in the present case, and no reason is shown why those remedies are inadequate or have not been pursued. If it be claimed that the remedies thus specified by the statute are available only to parents, and hence not available to residents and taxpayers, which is the capacity in which the present action is brought, we instantly encounter the rule that a citizen and taxpayer has such an interest in the performance of duty of public officers as will authorize the maintenance of an action at law to compel by mandamus the performance of official duties. Thomas v. Ragsdale, 188 Ga. 238 (3 S. E. 2d, 567).
While it is true in this case that the trial judge failed to rule upon the demurrer which raised the point that adequate remedies at law existed, yet the judgment granting an interlocutory injunction is one granting relief in equity, and is erroneous if an adequate remedy at law was available. Having held that such remedy exists, we therefore hold that the court erred in granting the interlocutory injunction complained of.
Judgment reversed. All the Justices concur.
E. T. Averett, Carl K. Nelson and Nelson & Nelson, for plaintiffs in error.
Saturday May 23 05:19 EDT

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