McCaskill v. Bower , 126 Ga. 341 ( 1906 )

Beck, J.

McCasldll sought to restrain the superintendent and trustees of the public school of Bainbridge from refusing admission to that school to his two sons who had failed to comply with a rule ■or regulation under which each male pupil over four feet and six inches in height and between certain named ages is required to wear a uniform which costs the sum of thirteen dollars, alleging in his petition that his sonsácame within the requirements of the rule •as to age and height, and attacking the regulation as being unconstitutional in divers particulars. The defendants demurred to the petition, on various grounds, among them being that the plaintiff had mistaken his remedy, that he should have proceeded by petition for mandamus instead of praying for an injunction. During the progress of the hearing (which was had at chambers in vacation) McCasldll amended his petition by alleging that after the grant of the temporary restraining order in the case, the board ■of trustees passed an amendment to the rule in question.under the terms of which a uniform will be provided for any pupil coming within the requirements thereof who is, because of poverty, unable to purchase the same, upon satisfactory proof being made.to the board by the parent or guardian of such pupil that such is the truth. McCaskill attacked this amendment in his amendment as void, because violative of the act under which the defendants hold ■office; and for the further reason that the rule as amended is contrary to several named provisions of the constitution in reference to appropriation of money for school purposes. At the hearing certain parties, each having a son “attending the . . school, coming within the requirements . . as to uniform,” were made parties plaintiff by intervention. The only evidence introduced was an affidavit to the effect that a fairly good suit of clothes could be purchased for a bo}^ coming within the provisions of the rule for the sum of $2.50, while five dollars would buy a suit of such quality that the wearer would be “well dressed, and clothed as well as the average boy in the city of Bainbridge.” Before the case was disposed of, the defendants objected orally to the allowance of the intervention and the amendment of the original petition, on the ground that the court had no jurisdiction or authority at chambers in vacation to allow either; they also filed written demurrers to the amendment and intervention; but as those pleadings seem to have been filed a day after the order was signed by the judge denying the injunction, and as the record does not disclose that they were ever before the judge, we can not consider them. The overruling of these oral motions and written demurrers is the subject of a cross-bill of exceptions filed by the defendants. After hearing argument of counsel the court passed the following order: “IJpon considering the petition and amendments offered, ordered and adjudged that the injunctions prayed fpr are refused upon the ground that the defendants have the authority to pass the regulation in question.” To this order all the plaintiffs excepted.

1. Without considering whether the court assigned the proper reason for denying the relief sought, or attempting to decide the cause upon its merits, we entertain no doubt that McCaskill was not entitled to an injunction. In the first place, it has been held by this court: “Where the board of education having in charge the management and control of the public school system of a city has enacted an alleged illegal requirement for admission to the public schools, the remedy of the parent whose child has been denied admission to such schools is by mandamus to compel the proper officer to admit the child, and not by injunction to restrain the enforcement of the alleged illegal requirement.” Board of Public Education v. Felder, 116 Ga. 788. This is undoubtedly conclusive upon McCaskill as to his original petition.

2. As to the amendment of the original petition, there can be no question that it is without merit. It was not alleged by Mc-Caskill that there had been even a suggestion of enforcing the amendment to the regulation, and the prayer for injunction on the ground that the amended rule or regulation is unconstitutional is so palpably meritless, in the absence of an allegation of even apprehended injury, that it need not be further discussed. And for similar reasons can the intervention be disposed of. Aside from the fact that under the rule that intervenors “take the case as they find it” (Branan v. Baxter, 122 Ga. 222; Railway Co. v. Pope, Ib. 577), and when the original petition is dismissed the intervention follows, under no view of the allegations in the petition for intervention, as we see them, do the intervenors appear to have a cause of complaint. It is alleged that each of them has a son attending the school “coming within the requirements as to uniform,” but it is not alleged' that the officers of the school have enforced the rule, attempted to enforce it, or that they are even threatening to enforce it against the children of these plaintiffs. Wherefore, then, are they entitled to relief? No principle is more clearly recognized than that equity will not attempt to do a thing which is vain; and it would be useless indeed to grant relief before injury is even threatened.

Judgrfient on main bill affirmed. Gross-bill dismissed.

All the Justices concur, except Pish, O. J., absent.