Guy v. Nelson , 202 Ga. 728 ( 1947 )

1. All county superintendents of schools shall be elected by the qualified voters of their respective counties, exclusive of districts having independent school system, quadrennially on Tuesday after the first Monday in November, for terms of four years beginning on the first day of January following the day of election; and each shall hold office until his successor is elected and qualified. Code, § 32-1002, Ga. L. 1909, p. 154, Ga. L. 1919, p. 349.

2. "The county superintendent of schools may be removed from office before the expiration of his term by a majority vote of the board of education for inefficiency, incapacity, neglect of duty or malfeasance or corruption in office: Provided, that any superintendent so removed shall have the right of appeal from the action of the county board to the State Board of Education." Code, § 32-1008, as amended by act approved March 27, 1947, Ga. L. 1947, pp. 1190, 1191. See also Code, § 32-910, relating to authority of the county board of education as to matters of local controversy in reference to the construction and administration of the school laws, and providing also for the right of appeal, as amended by the act of 1947, supra.

3. Sections 32-403 and 32-405, relating to the power and duties of the State Board of Education, including authority to pass upon appeals, were both expressly repealed by an act approved February 10, 1937, Ga. L. 1937, p. 864, sec. 11. By section 6 of the same act it was provided: "The State Board of Education shall have appellate jurisdiction in all school matters which may be appealed from any county or city board of education, and its decisions in all such matters shall be final and conclusive. Appeals to the board must be made in writing through the county superintendent of schools, or the secretary of the Official Board of Independent Systems, and must distinctly set forth the question of law, as well as the facts in the case. The board shall provide by regulation for notice to the opposite party and for hearing on the appeal." See also, in this connection, Code, §§ 32-505 and 32-912, relating to suspension of a county school superintendent, as distinguished from removal.

4. None of the foregoing statutes, nor any other law of this State, provides for notice and an opportunity for hearing before removal of the superintendent by the county board of education; and since it is provided intendant by the county board of education; and since it is provided in the Code, § 32-1002, supra, that county school superintendents shall be elected for fixed terms (compare Constitution of 1945, art. 8, sec. 6, par. 1, Code, Ann. Supp., § 2-6901, Ga. L. 1945, p. 80), and in the Code, § 32-1008, as quoted supra, that a superintendent may be removed from office before the end of his term for specified causes, the failure of these and other laws to make any provision whatever for notice to such officer, with an opportunity to make defense before being removed, renders such statute as to removal unconstitutional and void under the due-process clause of the Constitution of this State. Constitution, art. 1, sec. 1, par. 3 (Code, Ann. Supp., § 2-103, Ga. L. 1945, p. 10); Walton v. Davis, 188 Ga. 56 (2 S.E.2d 603), including special concurrence; Mott v. Ga. State Board of Optometry, 148 Ga. 55 (95 S.E. 867); State Board of Medical Examiners v. Lewis, 149 Ga. 716 (102 S.E. 24); Riley Co. v. Wright, 151 Ga. 609 (107 S.E. 857); State of Montana ex rel. Nagle v. Sullivan, 98 Mont. 425 (40 P.2d 995, 99 A.L.R. 321, ann.); 43 Am. Jur. 50, § 212. As to the Federal Constitution, contrast Taylor v. Beckham, 178 U.S. 548 (20 Sup. Ct. 1009, 44 L. ed. 1187).

5. The provision in the statute for an appeal to the State Board of Education after the county board "has rendered judgment of condemnation" is not a compliance with the mandate of the Constitution. See Mott v. Ga. State Board of Optometry, 148 Ga. 55 (supra). Also, as stated in that decision, tax cases "stand upon a different basis;" it being sufficient in the latter class of cases if the alleged tax debtor has an opportunity to be heard either before the amount of the tax is determined, or in subsequent proceedings for collection. Shippen Bros. Lumber Co. v. Elliott, 134 Ga. 699 (3), 702 (68 S.E. 509); Lanham Sons Co. v. Rome, 136 Ga. 398 (2) (71 S.E. 770).

6. Nor would the purported removal of the superintendent under the statute here under consideration be rendered valid because the officer may actually have been afforded a hearing by the board, since he was entitled thereto as a matter of constitutional right and not as a matter of grace. Shippen Bros. Lumber Co. v. Elliott, supra; Mott v. Ga. State Board of Optometry, supra.

(a) Under the preceding rulings as applied to the instant case, the trial judge did not err in overruling the demurrer to the petition for the writ of quo warranto, or in sustaining the motion of the relator to strike the plea in abatement; and there being no material issue of fact, it was not error to render final judgment in favor of the relator, ousting the respondent from office. The questions dealt with in the present case were not involved in Parkerson v. Hart, 200 Ga. 660 (33 S.E.2d 397). Nor do any of the decisions cited for the respondent, including Board of Education of Long County v. Board of Education of Liberty County, 173 Ga. 203 (159 S.E. 712), and Robitzsch v. State of Ga., 189 Ga. 637 (7 S.E.2d 387), require a different result in the instant case.

Judgment affirmed. All the Justices concur, except Wyatt, J., who took no part in the consideration or decision of this case.

No. 15965. OCTOBER 15, 1947. H. E. Nelson, claiming the right and title to the office of Superintendent of Schools of DeKalb County, filed an information in the nature of a quo warranto against J. Sam Guy, incumbent, seeking to recover the office from the latter. The respondent demurred generally to the petition as amended, and also filed a plea in abatement and an answer. The court overruled the demurrer of the respondent, sustained a motion of the relator to strike the plea in abatement, and entered a final judgment decreeing the relator entitled to the office and ousting the respondent.

The petition as amended alleged substantially the following: In the general election of 1944, the relator was elected to the office in question for the term of four years beginning January 1, 1945, and ending December 31, 1948, and was commissioned by the Governor accordingly; whereupon he entered upon the discharge of his duties at the beginning of such term. On May 6, 1947, the Board of Education of DeKalb County undertook to discharge him, and passed a resolution which was in part as follows: That "Superintendent Nelson, in all due respect to his honesty and sincerity, be removed this date May 6, 1947, from the office of Superintendent of DeKalb County Schools for inefficiency and incapacity, in accordance with authority given us by the school laws of this State, and relieved of all duties of that office, and resolved further: that Mr. Nelson be and he is hereby notified of this removal and that he be instructed, and he is hereby instructed, to turn over all keys to the office and everything in his possession, including money, papers, books, etc., which is the property of the DeKalb County School System, to whomever is designated by this board to receive them, immediately. Further resolved: That Mr. Nelson be advised, and he is hereby advised, that we take this action very reluctantly, and do so only after we have explored every avenue and exhausted every reasonable means which we feel could give us a better business administration free from political interference and a more efficient school system without humiliating any one."

On or about the same date, the board undertook by resolution to employ the respondent, J. Sam Guy, as successor, and installed him in office; and he is now claiming the right to such office and the right to perform the duties thereof to the exclusion of the relator.

The relator further alleged that the board of education, in passing such resolution and attempting to discharge him, undertook to act under section 153 of the act of 1919 (Ga. L. 1919, p. 351; Code, § 32-1008), as amended by an act approved March 27, 1947, and now reading as follows: "The county superintendent of schools may be removed from office before the expiration of his term by a majority vote of the board of education for inefficiency, incapacity, neglect of duty or malfeasance or corruption in office: Provided, that any superintendent so removed shall have the right of appeal from the action of the county board to the State Board of Education." Ga. L. 1947, pp. 1190, 1191.

The petition then alleged that such statutory provision is null and void because it is contrary to the due-process clause of the Constitution of Georgia, as set forth in the petition (art. 1, sec. 1, par. 3, Code, Ann. Supp., § 2-103; Ga. L. 1945, p. 10), in that it makes no provision for notice to a county school superintendent for a hearing on a charge or charges against him, and makes no provision for his having an opportunity to make a defense.

Still other attacks were made upon the foregoing statute, and also upon the action taken by the board thereunder; but, as no ruling is made by this court with respect to such additional attacks, they are not included in this statement.

The respondent's plea in abatement alleged that, on or about May 19, 1947, the relator filed an appeal with the State Superintendent of Education, thus placing himself under the statutory provision giving the right of appeal in such cases, and his present suit is therefore premature. For this reason, it was insisted that the present action should be abated, pending determination of such appeal by the State Superintendent of Education.

It was also insisted, in the demurrer to the petition, that the allegations fail to show jurisdiction in the court, for the reason that it is not alleged that the relator has exhausted such statutory method for determination of his claim to the office.

The answer admitted substantially all of the allegations of fact contained in the petition as amended; denying, however, an allegation to the effect that the plaintiff did not have ample notice and opportunity to be heard before passage of such resolution purporting to remove him, and averring affirmatively by way of response that as a matter of fact the relator was present at the time the resolution was passed, and "took advantage of the opportunity afforded him to be heard."

The judge, in rendering his judgment, stated that no issue of fact was involved, no evidence being offered by either of the parties; and he expressly held that the statutory provision under which the board acted is unconstitutional as contended by the relator.