Opinion
23063.
ARGUED SEPTEMBER 13, 1965.
DECIDED OCTOBER 7, 1965. REHEARING DENIED OCTOBER 19, 1965.
Injunction. Glynn Superior Court. Before Judge Flexer.
Edenfield, Heyman Sizemore, Newell Edenfield, Joseph Lefkoff, Bennett, Gilbert, Gilbert Whittle, L. J. Bennett, for plaintiff in error.
Eugene Cook, Attorney General, Arthur K. Bolton, Attorney General, Paul Hanes, Assistant Attorney General, William B. Gunter, Deputy Assistant Attorney General, contra.
Charles D. Wheeler, for party at interest not party to record.
The petition fails to allege sufficient facts to set forth a cause of action for declaratory judgment or for injunction.
ARGUED SEPTEMBER 13, 1965 — DECIDED OCTOBER 7, 1965 — REHEARING DENIED OCTOBER 19, 1965.
The State Board of Examiners in Optometry (hereinafter referred to as the Board) brought this action for declaratory judgment and injunction in Glynn Superior Court against Allen B. Womble. The petition alleged: that the defendant is carrying on the practice of optometry under the name "Pearle Optical" in violation of Rule F (11) of the Board; that the defendant, in carrying out the practice of optometry, displays to the public a large sign saying "Glasses as Low as $14.50" and "Contact Lenses $75.00" in violation of Rule F (14) of the Board; that the defendant is a duly licensed optometrist and by violating Rules F (11) and F (14) also violates Rule I; that there is an actual and justifiable controversy between the Board and the defendant in that the right of the defendant to engage in the practice of optometry and the right of the Board to regulate and control such practice are in conflict; that the direction of the court as to adjudication and determination of the rights of the parties is necessary to relieve the parties from the risks of taking any future undirected action incident thereto; that an adjudication and determination of the parties' rights is necessary to determine the authority of the Board to regulate the practice of optometry to protect citizens of this State in utilizing the services of licensed optometrists.
The prayers were: that the court enter a declaratory judgment declaring the defendant to be engaged in the practice of optometry in violation of the rules of the Board; that an order be entered enjoining the defendant from engaging in the practice of optometry in violation of the rules.
The defendant filed demurrers to the petition on the grounds: that no cause of action was set forth; that the plaintiff had an adequate remedy at law; that the exclusive remedy for the alleged wrongs is vested in the plaintiff Board; that rules of the Board are unconstitutional for various reasons stated; that the petition seeks equitable relief but fails to set forth the verification by members of the Board.
The cause proceeded to interlocutory hearing at which evidence was adduced by both sides. The trial judge then issued an order which overruled the defendant's demurrers and further held: that the rules of the Board were valid and enforceable; that the defendant was practicing optometry in violation of those rules; that the defendant was temporarily enjoined from continuing the practice of optometry under the name "Pearle Optical" and from advertising any rates, definite amounts or terms for optometric materials and services.
The defendant excepts and assigns error to the overruling of his demurrers, to the declaratory judgment entered by the trial judge and to the grant of the temporary injunction.
1. In Pearle Optical c., Inc. v. State Board c. in Optometry, 219 Ga. 364 ( 133 S.E.2d 374), we upheld the authority of the Board to promulgate rules under Ga. L. 1963, p. 214, and to control and regulate the practice of optometry. Thus, there is no uncertainty as to the Board's authority to accomplish this function. However, in the instant case the only declaratory relief sought is that the defendant be declared to be acting in violation of certain rules. The Board did allege that the direction of the court was necessary to relieve the parties "from the risk of taking any future undirected action incident thereto," but this was purely by way of conclusion of the pleader totally unsupported by averments of facts or circumstances to show any risk or uncertainty. "The demurrer admits to be true only properly pleaded allegations. It does not admit opinions or conclusions of the pleader." Callan Court Co. v. Citizens Southern Nat. Bank, 184 Ga. 87, 126 ( 190 S.E. 831).
The ruling in Pinkard v. Mendel, 216 Ga. 487, 490 ( 117 S.E.2d 336), is controlling here: "The object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated... Where, as here, the petition shows that the rights of the parties have already accrued and no facts or circumstances are alleged which show that an adjudication of the plaintiffs' rights is necessary in order to relieve the plaintiffs from the risk of taking any future undirected action incident to their rights, which action without direction would jeopardize their interests, the petition fails to state a cause of action for declaratory judgment." State Hwy. Dept. v. Georgia S. c. R. Co., 216 Ga. 547 (2) ( 117 S.E.2d 897).
Whether the plaintiff was entitled, had the cause been properly plead, to injunctive relief does not appear to have been in doubt and hence no declaratory judgment was necessary for that purpose.
2. The petition prays for injunction, but no equitable grounds why such relief should be granted are alleged. In the absence of statutory authority, equity will not intervene where a party has a complete and adequate remedy at law and no other equitable reasons, such as avoidance of a multiplicity of suits or that the acts of the defendant complained of constitute a constantly recurring wrong, generally denominated a continuing wrong, are alleged. Code §§ 37-120, 55-101. Here the plaintiff Board could proceed to have the defendant's license to practice suspended or revoked.
Since the trial judge erred in overruling the demurrers to the petition, all other and further proceedings were nugatory.
Judgment reversed. All the Justices concur, except Mobley, J., not participating for providential cause, and Cook, J., disqualified.