Opinion
22484.
SUBMITTED MAY 11, 1964.
DECIDED JUNE 9, 1964.
Injunction, etc. Fulton Superior Court. Before Judge Pharr.
A. A. Roberts, for plaintiff in error.
Sutherland, Asbill Brennan, A. C. Latimer, J. Lee Perry, James P. Groton, Clay C. Long, contra.
One can not invoke the aid of equity where no effort is made to exhaust administrative remedies or an adequate remedy at law is available.
SUBMITTED MAY 11, 1964 — DECIDED JUNE 9, 1964.
Michael Otwell, by next friend John Otwell, brought his petition seeking equitable relief in the Fulton Superior Court against Dr. Paul West, Superintendent of Fulton Superior Court Schools, Dr. E. S. Cook, Assistant Superintendent of Atlanta Public Schools, Dr. John Letson, Superintendent of Atlanta Public Schools, Mrs. Joe Williamson, Principal of Utoy Springs Elementary School, Ed Baker, and W. L. Robinson, Mrs. P. D. Christian, Jr., Perry J. Hudson, L. Marvin Rivers and Elwyn Gaissert as members of the Fulton County Board of Education and Oby T. Brewer, Jr., Dr. R. E. Clemmons, Fred Shell, T. Charles Allen, Elmo Holt, Glenn Frick, Mrs. G. Ray Mitchell and Harold F. Jackson as members of the Atlanta Board of Education, and Marcus Cash.
The pertinent facts as alleged in the petition are: that the plaintiff, an eight year old minor, resides on the outskirts of the City of Atlanta, the houses across the street from him being in Fulton County; that he lives closer to a Fulton County School, Utoy Springs, than to the nearest City of Atlanta School, Ben Hill; that he entered Utoy Springs with the permission and acquiescence of the defendants; that a school bus picks up students residing across the street from the plaintiff and carries them to Utoy Springs; that the plaintiff rode such bus for about two weeks until certain named defendants stopped him from riding the bus; that he was permitted to ride the bus, upon payment of a fee of ten cents each way, for about two more weeks and again stopped from riding the bus on the grounds he was not eligible to ride such bus; that there are other students who reside in Atlanta and attend Utoy Springs who ride the bus; that the plaintiff's father, by letter attached as an exhibit to the petition, asked for a hearing regarding the plaintiff's riding the bus and that the defendant Superintendent of the Fulton Schools answered stating they felt it would be best "for your boy and for us to ask you to transfer your son" to Ben Hill; that the Fulton Superintendent told the plaintiff he could ride the bus if the City of Atlanta would make a written request, which the city refused to do; that, by virtue of the letter, the defendants are threatening to transfer the plaintiff; that there are 17 students of Utoy Springs who reside in Atlanta and the plaintiff's father "believes" the decision of the defendants to transfer the plaintiff was made to prevent him from pursuing any administrative remedy or remedies he might have in an effort to secure an order requiring the defendants to permit the plaintiff to ride the school bus.
The petition alleged the defendants' actions deprived the plaintiff of due process of law under Section I of the Fourteenth Amendment to the United States Constitution in that: the defendants permit some students who reside in Atlanta to ride the school bus to Utoy Springs but refuse to permit the plaintiff to do so; the defendants permit some students who reside in Atlanta to attend Utoy Springs, in the best interest of the student, but are attempting to transfer the plaintiff after reaching the decision that it was to his best interest to attend Utoy Springs; that the defendants conspired and collaborated to transfer the plaintiff to deprive him of an appeal; that the defendants have singled out the plaintiff who is one of a class composed of students attending Utoy Springs, residing in the City of Atlanta and in an area serviced by a school bus transporting students to Utoy Springs and deny the plaintiff the right of riding the bus but grant the right to other students similarly situated.
The petition further alleged that unless the defendants are restrained and enjoined from transferring the plaintiff from Utoy Springs to Ben Hill the question will become moot on November 25, 1963, and that after that date the plaintiff will have no right to appeal to the State Board for an adjudication of his rights.
The prayers are: that the defendants be temporarily restrained and temporarily and permanently enjoined from transferring the plaintiff from Utoy Springs to Ben Hill; that the defendants be temporarily and permanently enjoined from disallowing the plaintiff from riding the school bus to and from Utoy Springs, upon the payment of ten cents fare in each direction.
A temporary restraining order was issued pending the hearing of the case. The defendants filed their answers and demurrers, and the case duly came on for interlocutory hearing, at which time documentary evidence and affidavits were introduced. After taking the matter under advisement, the trial judge entered two orders: one of which denied the interlocutory injunction, sustained the oral motion to dismiss made by the Fulton County Board of Education and dissolved the temporary restraining order; the other sustained the general demurrer filed by the Atlanta Board of Education. To these orders the plaintiff excepts and assigns the same as error on the grounds that they are contrary to law.
The plaintiff prayed that the defendants be temporarily and permanently enjoined from disallowing the plaintiff from riding the school bus to and from the county school and that the defendants be enjoined from transferring him from Utoy Springs, the county school, to Ben Hill, the city school. Nowhere was it alleged that the defendants in seeking to transfer the plaintiff were acting wrongfully, capriciously or arbitrarily or that such action as contemplated on the part of the school authorities was without legal authority. The averments that the father of the plaintiff "believes" the defendants' decision to transfer the plaintiff was made so as to prevent him from pursuing any administrative remedies he might have do not amount, in law, to an affirmative allegation that the board was acting illegally to deprive the plaintiff of his rights.
Neither did the petition allege that the plaintiff had sought to complain of the purported effort to transfer him or appeal from such "decision," as the petition terms it, to the State Board of Education as provided by the Acts of 1961, p. 39 ( Code Ann. § 32-910), or used the alternative method of certiorari as approved by the Court of Appeals in Morman v. Pritchard, 108 Ga. App. 247 ( 132 S.E.2d 561). Where no effort is made to exhaust one's administrative remedies, or an adequate remedy at law is available, equity will not intervene. Boatright v. Yates, 211 Ga. 125 ( 84 S.E.2d 195); Bedingfield v. Parkerson, 212 Ga. 654, 660 ( 94 S.E.2d 714).
The Acts of 1919, p. 331, as amended by Ga. L. 1946, pp. 206, 208 ( Code Ann. § 32-938), provide that, where a child resides in one county and a common school is located in another county which is more accessible to the residence of such child than a public school in the county of his residence, the school officials will arrange or contract for the attendance of such child at the "county line school." Board of Education v. Gresham, 21 Ga. App. 440 ( 94 S.E. 641). The Act although part of our laws, in substance, since 1872 (Ga. L. 1872, p. 17) has never been applied to a county and an independent school system, and the latest amendatory Act, that of 1946, Struck the words "sub-district" as formerly employed and expressly makes reference only to one "county" and another "county." Hence, the Act as it now reads only applies to counties and arrangements between them.
Moreover, the Act provides for the remedy of mandamus or appeal to the State Board of Education upon the failure or refusal of the county officials to arrange or contract for attendance at the nearer school. Even if the plaintiff was entitled to come within the benefits of the Act he totally and utterly failed to avail himself of its remedies and could not invoke the aid of equity. Colston v. Hutchinson, 208 Ga. 559, 560 ( 67 S.E.2d 763).
The trial judge did not err in sustaining the oral motion to dismiss and the general demurrer to the petition.
Judgments affirmed. All the Justices concur.