Opinion
17317.
FEBRUARY 12, 1951.
Mandamus. Before Judge Gower. Macon Superior Court. September 22, 1950.
W. F. Blanks, for plaintiff.
John S. Averill Jr., for defendants.
The court properly sustained the defendants' demurrer. A petition for the writ of mandamus must show that the applicant has a clear legal right to have performed the particular act which he seeks to have enforced; and that it is the defendant's legal duty, as a public officer, to perform it. Tested by that rule, the petition in the instant case failed to state a cause of action for the extraordinary remedy of mandamus.
No. 17317. FEBRUARY 12, 1951.
On August 15, 1950, W. M. Trussell instituted mandamus proceedings against W. H. Martin, as Superintendent of Schools for Macon County, Georgia, and R. H. Davis, J. O. Smith, J. A. Levie, J. M. Walker, and F. M. Carson, as the several members of the Macon County Board of Education, to compel the payment of $316.80 which he claimed the county board of education was due him as a bus driver. After being amended, the petition in substance alleges: The petitioner has operated a school bus for the defendants continuously since September, 1946. For the school year 1946-47, he operated a county-owned bus, with the county paying all of the expenses of operation, for a salary of $55 per month, and during that school year of nine months he traveled as a bus driver 6300 route miles for school purposes, receiving $495 as total compensation therefor. For the school years 1947-48, 1948-49 and 1949-50, under a three-year contract with the county board of education for pupil transportation, which was entered into on August 15, 1947, he operated his privately owned bus, personally paying all of the expenses of operation, for a salary of $204.57 per month. During the school year 1949-50, he traveled as a bus driver for school purposes 7920 route miles, and has been paid $1841.13 for the school year of nine months. Besides his basic contract salary of $1841.13, which has been paid, he is also entitled to four cents a mile for each of the 7920 route miles traveled by him as a bus driver for the school year 1949-50, as additional compensation for his services, in virtue of section 7 of the General Appropriations Act of 1949 (Ga. L. 1949, pp. 1506, 1509), and the rules and regulations established pursuant thereto by the State Board of Education, which were written to read as follows: "As provided by law directing that the State Board of Education shall fix minimum salaries for bus drivers, the following minimum salaries are hereby fixed: 1. Contracted transportation (including all cost of operation, furnishing equipment, etc.). The minimum compensation shall be not less than the contract price for the school year ended June 30, 1947, plus 4 cents per mile. 2. Salaried drivers (county owned equipment with the county defraying all expenses). The minimum salary of the bus driver shall be the salary paid for the year ended June 30, 1947, plus 2 cents per mile. 3. Operators employed subsequent to June 30, 1947, shall be subject to the same regulations as those mentioned in 1 and 2 above. The above regulations may be deviated from only by mutual consent of the operator and the County Board of Education." The State Board of Education has paid to the Macon County Board of Education, from funds appropriated for public-school purposes, the sum of $5504.24 to be used by it exclusively for the purpose of paying its bus drivers their additional compensation of four cents a mile for each route mile traveled by them for pupil transportation during the school year 1949-50; and the defendants, after demand therefor, refuse to pay the petitioner the balance of $316.80 legally due him, which is four cents a mile for each of the 7920 route miles traveled by him as a bus driver for the school year 1949-50. It was further alleged that the petitioner's operating expense, including depreciation of his bus equipment, for the school year 1949-50, was $1377.80; and that, after deducting this amount from his gross basic salary of $1841.13, he received a net salary of only $463.33 for the school year, which is $31.67 less than the amount received by him for his services for the school year 1946-47. There was a prayer for a judgment absolute to compel the defendants to pay the amount alleged to be due.
A general demurrer was interposed to the petition, renewed to it as amended, and several grounds of special demurrer were filed and urged to the amended petition. Without admitting that the petitioner had traveled 7920 route miles as a bus driver for the school year 1949-50, or that he had incurred an operating expense of $1377.80, including depreciation of his bus equipment, the defendants in responding to the amended petition said that, under the applicable provisions of the General Appropriations Act of 1949, and the rules and regulations established pursuant thereto by the State Board of Education, the petitioner was entitled to a minimum salary of $55 per month as a bus driver for the school year 1949-50, plus an amount equal to four cents a mile for the 6300 route miles traveled by him during the school year 1946-47, or a minimum salary of $747 for the school year 1949-50; and that he has been paid his full contract salary of $1841.13, which is an amount in excess of the compensation he is entitled to for his services as a bus driver under the provisions of the General Appropriations Act of 1949.
At the hearing no evidence was introduced, but the following facts were stipulated by the parties to be true: The petitioner was employed by the respondents as a school-bus driver for the school year 1946-47 to drive a county-owned, operated and maintained school bus, and was paid a salary of $55 per month for each of the nine months of that school year, and during that school year he traveled 6300 route miles for school purposes. The petitioner owned, operated, and maintained his own school bus during the school year 1949-50, and the respondents paid him a contract salary of $204.57 per month, aggregating $1841.13 for the school year of nine months. The State Board of Education did, on October 1, 1949, establish minimum salaries for school-bus drivers as pleaded in the petition. Pursuant to the applicable provisions of the General Appropriations Act of 1949, the State Board of Education paid to the respondents $5504.22 to be used exclusively for the purpose of paying the bus drivers for the school year 1949-50 the additional compensation provided for by said act; the amount so received being the equivalent of four cents a mile for the total route miles traveled by all of the school bus drivers in Macon County, Georgia, for the school year 1946-47.
The court overruled a motion to make the mandamus nisi absolute, sustained the respondents' general demurrer, and dismissed the amended petition. The petitioner excepted to those judgments, and by direct bill of exceptions brought his case to this court for review.
As shown by our statement of the facts, the court sustained a general demurrer to and dismissed the amended petition upon the ground that it did not state a cause of action for the writ of mandamus. Concededly, all other questions presented for decision by the writ of error will become moot if we sustain the trial court's ruling on the demurrer; and, for the following reasons, we are of the opinion that the court's ruling on the demurrer was proper:
(a) Mandamus will not be granted to require an illegal act to be done by a public official, or to compel the performance of an act where no duty is imposed by law. Adkins v. Bennett, 138 Ga. 118 ( 74 S.E. 838); Cureton v. Wheeler, 172 Ga. 879 ( 159 S.E. 283); Bowles v. Etheridge, 176 Ga. 660 ( 168 S.E. 769). To entitle one to the writ of mandamus, it must appear from the petition therefor that the applicant has a clear legal right to have performed the particular act which he seeks to have enforced. Code, § 64-101; Douglas v. Board of Education of Johnson County, 164 Ga. 271 ( 138 S.E. 226); Hodges v. Kennedy, 184 Ga. 400 ( 191 S.E. 377); Harmon v. James, 200 Ga. 742, 744 ( 38 S.E.2d 401).
(b) The petition for mandamus in the instant case is based upon the provisions of section 7 of the General Appropriations Act of 1949 (Ga. L. 1949, pp. 1506, 1508). That section of the act, after appropriating a stated amount for common-school purposes, contains the following: "Provided, that the State Board of Education shall establish the necessary rules and regulations so that the necessary amount of the funds distributed to the school systems for administrative purposes from the funds hereby appropriated shall be used specifically for additional compensation of bus drivers and said funds shall be distributed monthly during a school term to the county school systems on the basis of four cents per mile for the total route miles traveled each month by school bus for school purposes as reported to the State Department of Education for the school year 1946-1947. The State Board of Education shall fix minimum salaries for bus drivers.
"Provided, further each bus driver shall receive additional compensation above the amount of compensation in force and effect for the school year 1946-47, on the basis of four cents per mile for the total route miles traveled each month driving a school bus, during a school term for school purposes, based on mileage reported as above stated.
"Provided, further that this authorization and direction shall remain in force and effect until the passage and approval of an Act of the General Assembly authorizing the State Board of Education to establish other rules and regulations governing the operation of school buses.
"Provided, that the State Board of Education shall within the first thirty days of each fiscal period make an apportionment of this appropriation together with other funds available to the various activities of the Department of Education and immediately report same to the State budget authorities for approval. After said apportionment is approved, any and all obligations or commitments made which are in excess of the funds apportioned, shall be null and void and all expenditures shall be governed by the laws and budget regulations of general application which are or may be in force and effect."
The State Board of Education, as required by the provisions of the cited act, did on October 1, 1949, fix minimum salaries for school-bus drivers, as shown by our statement of the facts. However, this court, in Hunt v. Glenn, 206 Ga. 664 ( 58 S.E.2d 137), held that all bus drivers, whether operating a publicly owned or privately owned bus, were in virtue of the applicable provision of the Appropriations Act of 1949 entitled to four cents a mile for each route mile traveled for school purposes, as additional compensation therefor over and above the compensation of force and effect during the school year 1946-47; and that the State Board of Education in fixing two cents a mile as additional compensation for the drivers of publicly owned buses exceeded the rule-making power given it by the act. Under our ruling in the Hunt case, supra, if the plaintiff in the instant case had operated a publicly owned bus for the school year 1949-50, as he did for the school year 1946-47, he would have been entitled to a minimum salary of $495 — his salary in force and effect for the school year 1946-47, plus additional compensation of $252 — four cents a mile for the 6300 route miles traveled by him for school purposes during the school year 1946-47, or a total minimum salary of $747. But the petition shows that for the school year 1949-50, under a contract which expressly required him to furnish necessary bus equipment and pay all operating expenses, the plaintiff operated for pupil transportation his privately owned school bus for a salary of $204.57 per month, or $1841.13 for the school year of nine months, which has been paid to him in full by the defendants. In other words, the petition affirmatively shows that the defendants, in their official capacity, have already paid to the plaintiff, for the school year 1949-50, under the terms of their written school-bus contract with him, and in full compliance therewith, $1094.13 over and above the minimum compensation which he would have been entitled to, as a bus driver for the school year 1949-50, under the provisions of the Appropriations Act of 1949 and the rules and regulations passed pursuant thereto by the State Board of Education, as those rules and regulations were changed by our ruling in the Hunt case, supra, had his status as a school-bus driver not changed. In these circumstances, it can not be said, as a matter of law, that the additional compensation for bus drivers, as provided by the aforesaid act and regulations, has not been previously paid to the plaintiff. Consequently, the pleader has not shown, as he was required to show ( Carter v. Land, 174 Ga. 811, 164 S.E. 205), that the plaintiff has a clear legal right to have performed the particular act which he presently seeks to have enforced, and that a plain legal duty rests upon the defendants to perform the act which he seeks to compel by a resort to the extraordinary remedy of mandamus; and this is true notwithstanding an allegation in the petition that the contract salary paid to the plaintiff for the school year 1949-50, after deducting operating expenses and the depreciated value of his equipment, left him a net salary of less than the amount paid him for the school year 1946-47, as the driver of a publicly owned school bus, because the act of 1949 and the rules and regulations passed pursuant thereto make no provision for a net increase in salary where the school-bus driver's status has changed, as in this case, from the driver of a publicly owned to that of a privately owned bus, and where the latter, by the terms of his contract, is to furnish necessary equipment and pay all operating expenses for a stipulated amount. In the brief for the plaintiff in error, counsel says "that the untimely change in status placed the plaintiff in a position where neither the statute nor the directive by the State Board of Education covered him," and our view of the case accords with this. It follows, therefore, that the petition did not state a cause of action for the relief sought.
Judgment affirmed. All the Justices concur.