Board of Ed. and Orphanage for Bibb County v. State Bd. of Ed.

• Court: Georgia Supreme Court
• Writing for the Court: ATKINSON, Presiding Justice.
• Citation: Board of Ed. and Orphanage for Bibb County v. State Bd. of Ed., 197 S.E. 261, 186 Ga. 200 (Ga. 1938)
• Decision Date: 14 May 1938
• Docket Number: 12231.
• Parties: BOARD OF EDUCATION AND ORPHANAGE FOR BIBB COUNTY v. STATE BOARD OF EDUCATION et al.

197 S.E. 261

186 Ga. 200

BOARD OF EDUCATION AND ORPHANAGE FOR BIBB COUNTY v. STATE BOARD OF EDUCATION et al.

No. 12231.

Supreme Court of Georgia

May 14, 1938

Error from Superior Court, Fulton County; Hugh M. Dorsey, Judge.

Petition by the Board of Education and Orphanage for Bibb County for a writ of mandamus against the State Board of Education and another to compel apportionment and allotment to complainant of the county's pro rata share of the state common school tax funds on the basis and in the manner prescribed in complainant's charter. To review a judgment refusing mandamus absolute, complainant brings error.

Reversed.

Syllabus by the Court.

1. The caption, 'An act to establish a permanent Board of Education and Orphanage for the County of Bibb, and to incorporate the same; to define its duties and powers; and for other purposes' (Ga.L.1872, p. 388), was sufficiently broad to comprehend the provisions of section 3 of that act p. 389, as subsequently amended. Consequently the said section 3 is not violative of article 3, section 4, paragraph 5, of the constitution of 1868 (Code of 1873, § 5056) inhibiting passage of any 'law or ordinance * * * which refers to more than one subject-matter, or contains matter different from what is expressed in the title thereof,' the contention being that the title made no reference to appropriation of funds as provided in section 3 of the act.

2. For similar reason, section 6 of said act, p. 390, which purported to repeal in part the general act establishing a system of public instruction (Ga.L.1870, p. 49), and act amendatory thereof, in so far as relates to the County of Bibb, was not violative of the above-mentioned provision of the constitution of 1868, on the ground that there was no mention of repeal in the caption of the act.

3. Section 3 of the act of 1872, supra, did not affect private rights, within the meaning of article 1, section 26 (Code of 1873, § 5018), of the constitution of 1868, inhibiting variance of general laws affecting private rights, by special legislation; and consequently it did not offend that provision of the constitution.

4. Section 3 of the incorporating act does not offend article 1, section 29, of the constitution of 1868 (Code of 1873, § 5021), inhibiting levy of poll-tax except for educational purposes; or article 6, paragraph 3, of the constitution of 1868 (Code of 1873, § 5134) setting apart poll-tax and other specified funds to be devoted to the support of the common schools, the contention being that section 3 of the act in connection with section 2 provided for maintenance of orphanages from funds derived from poll-tax levied for educational purposes and appropriated by the constitution for support of the common schools.

(a) The provisions of the act relating to orphanages contemplated both maintenance and education of destitute orphans under sixteen years of age, the primary purpose being education, and maintenance merely incidental.

(b) Section 3 of the incorporating act, construed as expressed in subdivision (a), does not, as contended by the defendants in error, inhibit allotment to Bibb County of funds appropriated by section 24 of the general appropriation act approved March 30, 1937, (Ga.L.1937, pp. 54, 68), on the ground that such appropriation was solely for the purpose of operating the common schools of the State, and that a part of the funds, if allotted to Bibb County, would be used for maintenance and support of orphans.

5. The attacks on constitutionality of section 3 of the act and upon the act as a whole, dealt with in division 5 of the opinion, infra, are too indefinte to raise any question for decision.

6. The act of incorporating the Board of Education and Orphanage for the County of Bibb (Ga.L.1872, p. 388) was a valid law under the constitution of 1868, existing at the time of the adoption of the constitution of 1877, creating a local school system for the County of Bibb. It was not repealed, but on the contrary was preserved by article 8, section 5, paragraph 1 (Code of 1933, § 2-7001) of the constitution of 1877, which declared 'existing local school systems shall not be affected by this constitution.'

7. The provision in section 3 of the equalizing-opportunities act of 1937 (Ga.L.1937, pp. 882, 883), relating to allotment of State public-school funds, contains a proviso which declares: 'That those counties in which the public schools are operated under special acts recognized and continued by the constitution of 1877 shall be governed by the provisions of this act, except where the same is in conflict with any such special act.' This proviso should be considered in connection with the entire act of which it is a part. When so considered, the exception should be construed as referring to all the provisions of the act, and its effect is to exclude from operation of the act all laws of local school systems that had been recognized and continued by the constitution of 1877 that were in conflict with the act of 1937. Applying this ruling, the provisions of section 3 of the incorporating act of 1872, relating to allotment to the County of Bibb of its pro rata share of the State school fund, being in conflict with the act of 1937, was preserved by the foregoing exception, thus leaving section 3 of the incorporating act unrepealed and not in any wise affected by the act of 1937.

8. Applying these rulings, there being no issue of fact but only questions of law made by the pleadings, the judge erred in refusing mandamus absolute.

Jones, Russell & Sparks and Harry S. Strozier, all of Macon, for plaintiff in error.

M. J. Yeomans, Atty. Gen., and Dave M. Parker and W. H. Duckworth, Asst. Attys. Gen., for defendants in error.

ATKINSON Presiding Justice.

In section 3 of the charter of the Board of Education and Orphanage for the County of Bibb, as amended (Ga.L.1872, pp. 388, 389; 1873, p. 218; 1876, p. 314), it is provided: 'That the said board shall be entitled to, and shall receive for the purposes aforesaid from the State School Commissioner, the pro rata share of Bibb county, of all taxes now paid to the State, and specially set apart for educational purposes, and all appropriations for said purposes; and from the Treasurer of the State of Georgia the pro rata share of said county of all endowments, devises, gifts and bequests made, or hereafter to be made, to the State or State Board of Education, and of any and all educational incomes and funds not belonging to and due to the State University, now in the treasury of the State, and of one half of the net earnings of the Western & Atlantic Railroad now in the treasury of the State, or hereafter to be deposited--said pro rata share to be determined by the ratio which the number of children, white and colored, in said county, between the ages of six and eighteen, bears to the number of white and colored children in the State between the ages of six and eighteen; and said board shall further have the power to assess such tax upon the taxable property of said county of Bibb as they may think necessary to support the system of schools and orphan homes which they may establish, which tax, when approved by the Board of County Commissioners of Bibb County, shall be levied by the ordinary of said county, and collected like other taxes of said county.' In section 3 of the equalizing-opportunities act of 1937 (Ga.L.1937, pp. 882, 883) provision is made for division of the several counties in the State and the various independent school systems into 'units of administration' to be managed by the local superintendents and boards of education of the several counties under rules and regulations of the State Board of Education. 'Provided * * * that those counties in which the public schools are operated under special Acts recognized and continued by the Constitution of 1877, shall be governed by the provisions of this Act, except where the same is in conflict with any such special Act.' Sections 4 et seq. of the act, p. 884 et seq., provide for classification of such units of administration and teachers; also for teachers' salaries according to specified grades to be fixed by the State Board of Education and paid from 'the common school fund and such appropriations as may have been, or may hereafter be made by the General Assembly for common school purposes,' according to the classifications. The Bibb County board instituted mandamus proceedings against the State Board of Education and the State superintendent of schools; to compel apportionment and allotment to complainant the pro rata share of Bibb County, of the State common school tax funds, on the basis and in the manner prescribed in section 3 of complainant's charter, instead of allotment under the general act of 1937 as intended to be done by the respondents. On the pleadings, by which no issue of fact was made, the judge refused mandamus absolute, and the complainant excepted.

1. One ground of attack upon section 3 of the body of the incorporating act is that it is void as violative of article 3, section 4, paragraph 5 of the constitution of 1868 (the constitution then in force) inhibiting passage of any 'law or ordinance * * * which refers to more than one subject matter, or contains matter different from what is expressed in the title thereof.' The foregoing quotation from the constitution of 1868 appears also in article 3 section 7, paragraph 8 of the constitution of 1877. The provision in the constitutions appears respectively in the Code of 1873, § 5056, and the Code of 1933, § 2-1808. It was alleged that the act was violative of the constitution, 'for the reason that the title of same made no reference to the appropriation of funds as provided in section 3, and section 3 which purported to appropriate...