Board of Public Education and Orphanage for Bibb County v. State Board of Education

• Decision Date: 21 June 1940
• Docket Number: 13273.
• Citation: 10 S.E.2d 365,190 Ga. 581
• Parties: BOARD OF PUBLIC EDUCATION AND ORPHANAGE FOR BIBB COUNTY v. STATE BOARD OF EDUCATION et al.
• Court: Georgia Supreme Court

10 S.E.2d 365

190 Ga. 581

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

No. 13273.

Supreme Court of Georgia

June 21, 1940

Rehearing Denied July 13, 1940.

Second Motion for Rehearing Denied July 19, 1940.

Syllabus by the Court.

1. If the act approved March 24, 1939, amending the act of February 10, 1937, be treated as a valid law, and if both be construed according to their evident intention, the two acts together repealed by implication so much of Section 3 of the special act of August 23, 1872, as declared a basis for apportionment of the State school fund to Bibb County, and placed the county upon the different and general basis prescribed by the act of 1937.

2. The provision of the constitution of 1877 that 'Existing local school systems shall not be affected by this constitution,' article 8, § 5, par. 1, is not a prohibition against legislative enactment changing such local systems. Accordingly, the act of 1939, mentioned in the preceding note is not unconstitutional as violating that provision.

Turpin & Lane, of Macon, for plaintiff in error.

Ellis G. Arnall, Atty. Gen., and Marshall L. Allison and E. J Clower, Asst. Attys. Gen., for defendants in error.

BELL, Justice.

The Board of Public Education and Orphanage of Bibb County filed a petition against the State Board of Education and its members, seeking the writ of mandamus. The purpose of the suit was to compel the defendants to apportion to the plaintiff Bibb County's share of the public school fund of the State in accordance with a special act passed by the General Assembly in reference to Bibb County, August 23, 1872 (Ga.L.1872, p. 388), instead of applying the basis prescribed by the act of February 10, 1937 known as the equalizing opportunities act, as amended by the act of March 24, 1939 (Ga.L.1937, p. 882; Ga.L.1939, p. 408).

By Section 3 of the act of 1872, it was declared that Bibb County's 'pro rata' share of the public school fund should 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.'

The act of 1937 prescribed a basis of apportionment different from and in conflict with that provided by the act of 1872, and less favorable to the plaintiff, as it contended. The petition contained among others the following allegations '21. Petitioner avers that the only legal basis on which a distribution of the common school tax funds may be made to it is the basis prescribed in Section 3 of the act establishing and chartering petitioner, and it is the announced intention of the defendant herein named to disregard the basis prescribed in said special act and to apply to petitioner the basis prescribed in said act of 1937 which basis has no application to this petitioner, so that the act or acts of the defendants herein named applying such basis to this petitioner is contrary to law.

'22. Petitioner avers that it is the legal duty of the defendants herein named to apportion and allot to petitioner the pro rata share of Bibb County of the common school tax funds of the State of Georgia on the basis and in the manner prescribed in the special act of the General Assembly of the State of Georgia hereinbefore set forth and referred to.

'23. Up to the present time petitioner has elected and petitioner does for the present elect to receive its share of the common school tax funds of the State of Georgia on the basis prescribed in Section 3 of the act establishing and chartering it.

'24. Petitioner has consistently demanded of the defendants herein named that in the distribution of the common school tax funds of the State the basis prescribed in the aforesaid special act be allowed as the only legal and lawful basis of distribution but petitioner is now advised and notified that its demands will not be complied with in the future.

'25. Petitioner avers that the act approved March 24th, 1939, does not serve to change the rights of petitioner to have its proportion of tax funds allotted to it on the basis of the act of 1872, and specially avers that said act of March 24th 1939, is contrary to the provisions of paragraph 1 of section 5 of article 8 of the constitution of 1877 in that said paragraph provides that existing school systems shall not be affected by this constitution.

'26. Petitioner further avers that said act of March 24th, 1939, does not expressly in terms, or by necessary implication, or by revision, or in any other manner repeal or amend or affect the special act chartering petitioner under which petitioner's rights are fixed, but that on the contrary said special act is still of full force and effect, and petitioner is entitled to have distributed to it its proportion of the school tax funds of said State under the terms and provisions of said special act.'

The court dismissed the petition on general demurrer, and the plaintiff excepted.

The act of 1937 applied as a general law to all counties of the State, except that in Section 3 was a proviso '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.' In Board of Education and Orphanage for Bibb County v. State Board of Education, 186 Ga. 200(7), 197 S.E. 261, it was held that in view of the quoted proviso, this statute did not repeal Section 3 of the act of 1872, as to apportionment to Bibb County. The act of 1939 amended the act of 1937 by striking the proviso.

Two contentions are presented by the plaintiff: (1) That the act of 1937, as amended by the act of 1939, did not according to the terms of these statutes and the intention of the legislature have the effect of repealing Section 3 of the special act of 1872, on which the plaintiff relied; (2) but that even if such repeal was intended and sufficiently expressed, the act of 1939 is invalid as violating the provision of the constitution of 1877 that 'Existing local school-systems shall not be affected by this constitution' (Const. art. 8, § 5, par. 1, Code, § 2-7001), and that with this act eliminated there would be no statute purporting to change apportionment as related to Bibb County, in view of the excepting clause contained in the act of 1937, as construed in Board of Education and Orphanage for Bibb County v. State Board of Education, 186 Ga. 200, 197 S.E. 261, supra.

1. Regarding the first contention, let it be said that the present case and that of State Board of Education v. County Board of Education of Richmond County, Ga.Sup., 10 S.E.2d 369, decided today, involving a similar question have been considered together, and so have the briefs filed in both cases. We have reached the conclusion that there was an implied repeal as to each of the local acts, and have discussed the question in an opinion this day delivered in the Richmond County case. In that case, in view of the provisions of the Richmond County act (Ga.L.1872, [10 S.E.2d 367] p. 456), we had to cover the same ground as in the case at bar, and more. So we may dispose of the question here by simply making reference to that decision.

2. The second contention, as amplified in the argument and briefs, is that the clause 'Existing local school-systems shall not be affected by this constitution,' so preserved and fixed the status of the existing system of Bibb County that the special act establishing it could never thereafter be amended or repealed by a mere act of the General Assembly; or, in other words, that it is a positive inhibition against legislative enactment, and consequently a change could only be made by constitutional amendment. It is further insisted that this court has passed upon substantially the same question in several previous cases, and in each instance has determined it favorably to the local school system.

We may say first that we cannot agree with counsel as to the effect of our previous decisions.

In Smith v. Bohler, 72 Ga. 546, decided in 1884, the constitutional questions related in the main to the validity under the constitution of 1868, of certain provisions of the Richmond County act, purporting to empower the county board of education to assess a tax for educational purposes. After otherwise sustaining the act, the decision concluded with the following statement: 'The questions relied on with propriety by the able and learned counsel for plaintiffs in error, are the constitutional points first considered. The others, we suppose, were hurriedly thrown in, many of them, as ballast or make-weight. On those constitutional questions, it may be well to add that, so far as general provisions of the constitution of 1877 may be argued to affect the system of education in Richmond county, that constitution itself provides a complete answer. The first paragraph of the fifth section of the eighth article of that constitution declares: 'Existing local school systems shall not be affected by this constitution.' Code [1882], § 5208 [Code, [1933] § 2-7001]." The clear meaning...