Board of Education v. Hunt , 29 Ga. App. 665 ( 1923 )

Luke, J.

A suit against the board of education of Houston county, was brought by J. M. Hunt to the May term, 1922, of the city court of that county for, breach of a contract made with him to transport pupils for designated periods to and from schools. The plaintiff alleged substantially that he entered into and performed his contract to transport pupils during the nine months ending with the closing of the Perry school in the summer of 1921, and the board paid him for eight months work, but refused to pay him $150 due for the ninth month. Pie further alleged that on August 16, 1921, he contracted with the board to transport pupils from Lakeside school to and from the school at Perry for $80 per month for a period of eight school months of four weeks each; that after he had performed his part of the contract for one month and had been paid therefor, upon his refusal to transport without additional compensation pupils other than those he had contracted to carrj'-, he was discharged by the board and not permitted to carry out his contract, though he was able and willing so to do, and actually did during the month of October, 1921, have his truck and driver appear at the proper places and times to transport the pupils he had contracted to carry. He claimed damages in the amount of $420 for the seven months he was denied the rights of his contract. The defendant demurred to the petition, upon the ground that the county board of education of Houston county “ was not a body corporate with authority to sue and be sued.” This demurrer was overruled, and the defendant excepted.

The opinion of a majority of the court is as follows: The only question for adjudication by this court. is whether or not a county board of education constituted under sections 1478 et seq. of the Civil Code of 1910 (see also Code of School Laws, Ga. L. 1919, p. 320, and 8 Park’s Ann. Code, § 1437 (a) ét seq.) is subject to an ordinary suit at law for the breach of a contract? Section 1525 (d) of Park’s Annotated Code is not operative in Houston county; and the laws under which the board was created nowhere provide that a county board of education is a body corporate capable of suing and being sued. In the absence of such legislative .authority, it is the settled law of this State that a county board of education is not a body corporate with, authority to sue and be sued, in the ordinary sense. Such a board is not the custodian of the public funds, and money due a person under a contract entered into between him and the board is payable out of the public funds when approved by the board. Even if a county board of education could be sued, a money judgment against the board would be of no practical benefit to the plaintiff, as it could subject nothing to levy and sale. Consequently, a suit at law of this character would afford the plaintiff no remedy. Mandamus is the proper remedy to compel a .county board of education to perform a duty imposed by law. It is the only remedy in this case, because it is the only adequate and specific remedy at law. The case of Mattox v. Board of Education, 148 Ga. 577 (2), 580 (97 S. E. 532, 5 A. L. R. 568), is direct authority for the above statements, and that case has been cited and quoted with approval in the recent cases of Smith v. Board of Education, 153 Ga. 758 (2) (113 S. E. 147), and Ferguson v. Smith, 27 Ga. App. 806 (2) (110 S. E. 42).

The case of Board of Education of Doerun v. Bacon, 22 Ga. App. 72 (2) (95 S. E. 753), does not conflict with the ruling now made. That case was a suit for damages for the breach of a contract of employment brought' against the board of education of the Town of Doerun; whereas the instant suit is one for damages for the breach of contract brought against the county board of education for Houston county. When the county board of education acts upon matters lawfully within its jurisdiction, it is the county acting through “ its corporate authority (Smith v. Board of Education, supra); and a county is not liable to suit unless there is a law which in express terms or by necessary implication so declares (Millwood v. DeKalb County, 106 Ga. 743, 32 S. E. 577), but a town or city may be. The facts of the other cases cited and relied 'upon by defendant in error easily distinguish them from the instant one.

It follows from what has been said that the petition failed to set out a cause of action, and that the trial court erred in overruling the demurrer interposed thereto.

Judgment reversed.

Broyles, C. J., and Bloodworth, J., concur.