Opinion
18171.
SUBMITTED APRIL 13, 1953.
DECIDED MAY 12, 1953.
Petition for injunction. Before Judge Crow. Grady Superior Court. January 24, 1953.
Eugene Cook, Attorney-General, Lamar Sizemore, Assistant Attorney-General and M. H. Blackshear Jr., for plaintiff in error.
Custer Kirbo and Charles H. Kirbo, contra.
The suit against Tom Linder, individually, seeking to prevent his using land belonging to the State for purposes that he, as Commissioner of Agriculture, is by statute authorized to do, alleges no cause of action, and it was error to overrule the general demurrer thereto.
No. 18171. SUBMITTED APRIL 13, 1953 — DECIDED MAY 12, 1953.
Suit by R. C. Ponder, W. L. Prince, A. U. Wilder, B. M. Lee, Edgar Stringer Jr., Fred Collins, Raymond Johnson, and G. F. Childs against W. A. Walker Jr., P. T. Carlton, W. G. Hester, Carl R. Bryant, and M. L. Williams, individually and as a group constituting the Board of Commissioners of Roads and Revenues of Grady County, Georgia, and Mrs. T. L. Rushin, individually and as executrix of the last will and testament of T. L. Rushin, and Tom Linder, individually, alleging conspiracy and unlawful expenditure of county funds to purchase land described in the petition and have it conveyed to Tom Linder as Commissioner of Agriculture of Georgia and his successors in office.
Attached to the petition is a deed from Mrs. T. L. Rushin, individually and as executrix of the last will and testament of T. L. Rushin, deceased, to Tom Linder, as Commissioner of Agriculture and his successors in office, conveying the land involved in the controversy. Certain described acts of altering and using the land by Tom Linder are alleged, and the following is the relief prayed for: (1) that title to the land be decreed to be in Grady County; (2) that Grady County and the commissioners be enjoined from spending county funds to acquire land or property to operate a State Farmer's Market, or altering the land described; (3) that all defendants be enjoined from altering, changing, injuring, or demolishing any of the land described in the petition; and (4) that the commissioners and Tom Linder be enjoined from conspiring or using county funds, county equipment or material in connection with the State Farmer's Market. The exception here is to the judgment overruling the general demurrer of Tom Linder.
That the State of Georgia can not be sued without its consent is not an open question. Roberts v. Barwick, 187 Ga. 691 ( 1 S.E.2d 713). Therefore, despite extended debate of counsel on this subject, we dispose of it with the simple statement that no attempt is here made to sue the State. However, the relief sought against Tom Linder is to prevent him from dealing with land which the petition shows belongs to the State. This petitioners can not do. To obtain a judgment decreeing title to the land in question to be in Grady County because it allegedly paid the purchase price of $4000, when the copy of deed attached to the petition shows title in the State — the State as grantee and Mrs. Rushin as grantor would be essential and indispensable parties. Kehr v. Floyd Co., 132 Ga. 626 ( 64 S.E. 673); Brown v. Wilcox, 147 Ga. 546 ( 94 S.E. 993); Lands Development Corp. v. Union Trust Co., 180 Ga. 785 ( 180 S.E. 836); Manning v. Simmons, 207 Ga. 304 ( 61 S.E.2d 150). Since the grantee, the State, is not a party to this action, no cancellation of the State's deed can be decreed, and, so long as that deed remains uncanceled, these petitioners have no right to prevent Tom Linder from using it in any manner he chooses in connection with the State's business which he as Commissioner of Agriculture is authorized by law to carry on.
Whether the county commissioners unlawfully expended county funds by furnishing the money with which the land involved was purchased is wholly irrelevant to all relief prayed against Tom Linder. If it be conceded that such expenditure was unlawful, and if it be further conceded that in a proper suit the deed to the State could be canceled, it would still be necessary to make the State a party to any suit seeking cancellation of the deed.
Stripped of all arguments of counsel, this action against Tom Linder seeks to prevent his using State-owned land for purposes which the law plainly authorizes. It must follow that no right of action against him is alleged, and the court erred in overruling his demurrer based upon this ground.
Judgment reversed. All the Justices concur, except Atkinson, P. J., not participating.