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LIVELY et al. v. GRINSTEAD, Supervisor.
Injunction. Before Judge Guess. DeKalb Superior Court. November 19, 1953.
SUTTON, Justice.
1. This court will not pass upon the constitutionality of an act of the General Assembly where the determination of such question is not essential to a disposition of the case.
2. And where, as here, it appears from the petition that the plaintiff has not exhausted his statutory remedies with reference to the subject matter of his complaint, the petition failed to set forth a cause of action for the injunctive relief sought; and the trial judge did not err in sustaining the defendant's general demurrer and in dismissing the action.
W. C. Lively filed his petition, in DeKalb Superior Court, against Captain W. P. Grinstead, as Supervisor of the Bureau of Safety Responsibility of the Department of Public Safety of the State of Georgia, which petition as amended alleged substantially the following: Defendant has been duly appointed by the Director of Public Safety to enforce the act approved February 21, 1951 (Ga. L. 1951, p. 565; Code, Ann. Supp., 92A-601 et seq.). Petitioner earns his livelihood by the operation of motor vehicles for hire in the Buckhead District of Fulton County; and on April 7, 1953, he owned a described Nash automobile. Petitioner and Horance E. Duffey were drivers for the Buckhead Car for Hire, Inc., a Georgia Corporation. On the date last mentioned Duffey borrowed petitioner's automobile to be used in driving to his home in Ellenwood, Georgia, and in returning to Atlanta, such mission being wholly disconnected with any business or mission for the petitioner. While Duffey was on his way back to Atlanta on State Highway Number 42, about one mile north of Conley, and just after he had made a stop on his side of the highway, and had given a signal to make a left turn into a filling station, the automobile driven by Duffey was struck from the rear by a 1950 model Ford automobile being driven in the same direction by Robert Campbell, of Jackson, Georgia. The impact knocked the Nash automobile into the path of another automobile being driven in the opposite direction by Mrs. Nell C. Castellaw, of Locust Grove, Georgia, the last-named car also striking the Nash automobile and doing further damage thereto. As a result of the collision Duffey has filed a damage suit for personal injuries against the named drivers of the other automobiles in the sum of $25,000, which suit is now pending. The defendant in the present action has recently notified petitioner that, as a result of Duffey's accident, petitioner must, by July 1, 1953, post with the Department of Public Safety of Georgia, the sum of $1,000 in cash as collateral against the claims of others arising out of the automobile collision. Defendant has notified petitioner further that, unless he posts the $1,000, the defendant will immediately revoke petitioner's Georgia driver's license until such time as the sum is posted. Petitioner is a working man of limited means and is financially unable to post the $1,000 with the Department of Public Safety , and he earns his livelihood by the operation of motor vehicles and will be unable to earn his likelihood in the event the defendant revokes his driver's license. Under no theory of Georgia law could petitioner be legally liable for any damages occasioned in the automobile collision, the Nash automobile being used at the time of the accident on the
personal business of the driver, Duffey, and totally disconnected with any business or mission of petitioner. The Motor Vehicle Safety Responsibility law is void, in that it is violative of designated provisions of the Federal and State constitutions, and particularly is this true of sections 5 and 6 thereof. The defendant is proceeding illegally, in that the director has delegated to the defendant the powers and duties set out in Code (Ann. Supp.) 92A-601 et seq., in the absence of legal authority so to do, the defendant being a supervisor in the Department of Public Safety of Georgia. The petitioner has no adequate remedy at law, and unless a court of equity enjoins the defendant from revoking his driver's license he will suffer irreparable injury, in that he will be deprived of his means of a livelihood for himself and his family. The prayers, besides for process and a rule nisi, were: that the defendant and those acting by his purported authority be enjoined from revoking, taking up, and changing the status of petitioner's driving license on account of his failure to post with the Department of Public Safety the sum of $1,000; and that the petitioner have general equitable relief.
Fourteen named persons, each of whom alleged that he or she had an identical cause of action against the defendant as that asserted by the petitioner, were allowed to intervene as parties plaintiff.
The defendant filed a demurrer on general and special grounds to the petition as amended and to the several interventions. The trial judge sustained the general demurrer and dismissed the action, to which ruling the petitioners excepted.
"Intervenors in an equity suit take the case as they find it, and cannot establish equities in their own behalf by intervention where the original petition in the case in which they intervene does not allege an equitable cause of action." Smith v. Manning, 155 Ga. 209 (4) (116 S. E. 813). Nor will constitutional questions be passed upon unless their determination is necessary to a disposition of the case. Sumter County v. Allen, 193 Ga. 171, 173 (17 S. E. 2d 567); Harper v. Davis, 197 Ga. 762, 765 (30 S. E. 2d 481); Powers v. Wren, 198 Ga. 316 (3) (31 S. E. 2d 713); Hutchins v. Candler, 209 Ga. 415, 416 (73 S. E. 2d 191); Aiken v. Richardson, 209 Ga. 837 (4) (76 S. E. 2d 393); and citations. Therefore, the question arises as to whether the petitioners have exhausted their statutory remedy.
Section 2 of the act of 1951 (Ga. L. 1951, p. 565; Code, Ann. Supp., 92A-602) provides for a hearing upon the request of any person aggrieved by acts of the director, and that "any order or act of the Director, under the provisions of this act shall be subject to review by the superior court in the county of the residence of the complaining party in a proper proceeding."
Equity by writ of injunction will restrain any act which is illegal or contrary to equity and good conscience and for which no adequate remedy at law is provided. Code 37-102; Chadwick v. Dolinoff, 207 Ga. 702 (2) (64 S. E. 2d 76); Waycross Military Assn. v. Hiers, 209 Ga. 812 (5) (76 S. E. 2d 486). But where all the relief sought can be obtained in the manner provided by law, a suit in equity for injunction will not lie. Scarbrough v. Cook, 208 Ga. 697 (1) (69 S. E. 2d 201).
Applying the above-stated principles of law to the pleadings under consideration, the allegations of the petition as amended, which neither made any reference to a request for a hearing nor to any appeal to the superior court, failed to state a cause of action for the injunctive relief that was sought, and the trial judge did not err in sustaining the defendant's general demurrer and in dismissing the action.
Judgment affirmed. All the Justices concur.
Eugene Cook, Attorney-General, Hugh C. Carney, Hamilton B. Stephens, Assistant Attorneys-General, contra.
Frank Grizzard, Frank A. Bowers, John L. Respess, Jr., Margaret Hopkins, Guy Tyler, Edward E. Dorsey, D. B. Phillips, Davis & Stringer, Johnson & Johnson, for plaintiffs in error.
Saturday May 23 03:42 EDT

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