Bowers v. Hanks, (No. 2515.)

• Decision Date: 16 February 1922
• Docket Number: (No. 2515.)
• Parties: BOWERS. v. HANKS.
• Court: Georgia Supreme Court

152 Ga. 659

111 S.E. 38

BOWERS.

v.HANKS.

(No. 2515.)

Supreme Court of Georgia.

Feb. 16, 1922.

(Syllabus by the Court.)

Error from Superior Court, Floyd County; Moses Wright, Judge.

Mandamus by W. E. Bowers against J. D. Hanks, Chairman of the Board of Commissioners of Roads and Revenues of Floyd County. Judgment refusing to make the mandamus absolute, and the petitioner brings error. Affirmed.

W. E. Bowers was employed by the board of commissioners of roads and revenues of Floyd county as county demonstration agent of said county for the year 1921, at the salary of $150 per month. As such agent he rendered the services required for the months of January and February, 1921. The clerk of said board issued a warrant for the two months' salary due him; but the chairman of the board, upon whom devolved the duty of signing county warrants, refused to sign the same. Thereupon Bowers applied for a mandamus to compel him to sign the warrant issued by the clerk for his salary for the two months. Mandamus nisi issued; and in reply thereto J. D. Hanks, as chairman of said board, demurred to the petition, on the grounds: (a) That there was no law authorizing the employment of such agent and the payment of his salary by the county of Floyd; and (b) because such salary could not be constitutionally paid from the funds of said county raised by taxation. In his answer Hanks, as such chairman, set up the same defenses to the mandamus proceedings.

The case was submitted to the trial judge upon the petition, demurrer, and answer, and he refused to make the mandamus absolute. The plaintiff excepts to this judgment.

M. B. Eubanks, Lamar Camp, and L. A. Dean, all of Rome, and Cobb & Bell, of Athens, for plaintiff in error.

John W. Maddox, of Rome, for defendant in error.

HINES, J. (after stating the facts as above). [1] 1. Article 2, § 1, par. 1, of the Constitution of this state declares that "each county shall be a body corporate, with such powers and limitations as may be prescribed by law." Civil Code, § 6594. Under this provision of our Constitution counties possess no powers not conferred upon them either expressly or by fair implication from the statutes applicable to them. When they undertake through their constituted authorities to exercise the power of taxation in any given manner, a clear and manifest legal right to do so must appear. Maxwell v. Cumming, 58 Ga. 384; Kennedy v. Seamans, 60 Ga. 612: Albany Bottling Co. v. Watson, 103 Ga. 503. 30 S. E. 2T0; Howard v. Early County, 104 Ga. 669, 30 S. E. 880; De Vaughn v. Booten, 146 Ga. 836, 92 S. E. 629.

Has the Legislature granted to the county of Floyd the authority to employ and pay a county demonstration agent? Our attention has not been called to any statute of this state conferring this power generally upon the counties thereof; but it is insisted that the act creating the board of commissioners of roads and revenues for the county of Floyd confers statutory power upon said board to employ and pay such an agent from the funds of the county raised by public taxation. No such express power is given this board by the act of the Legislature creating the same; but it is insisted that this board can exercise, in addition to the specific authority granted in the act of its creation, such other powers as were granted by the then Code of this state to justices of the inferior court. Section 5 of this act declares that—

"Said board of commissioners shall have the same powers in appointing road commissioners and enforcing the road laws, as justices of the inferior court had by the Code of this stateprior to the ratification of the late state Constitution, and shall exercise such other powers as are granted by the Code of the state to said Justices." Ga. Laws 1871-72, p. 226 et seq.

Under the then Code of this state the justices of the inferior court of the several counties had authority, upon the recommendation of the grand jury, to levy a tax upon the state tax, for educational purposes, of such per cent. as said jury may recommend. Code of 1867, § 1281. If the grand jury at the time they should recommend the general county tax failed to take any action in reference to this tax, then such justices might, in their discretion, levy a tax for such purpose, not to exceed 25 per cent. upon the state tax. Code of 1867, § 1282. The educational fund of each county was under the management of a board of education, consisting of the justices of the inferior court, the ordinary, and some other qualified citizen, to be selected by the judge of the superior court presiding in such county. Code of 1867, § 1285. If the board of education failed to devise any plan of education, the laws in force prior to December 13, 1859, were continued in force. Code of 1867, § 1294.

It is Insisted that the act creating the board of commissioners of roads and revenues of Floyd county is preserved by article 12, section 1, paragraph 4, of the Constitution of 1877, which provides:

"Local and private acts passed for the benefit of counties, cities, towns, corporations, and private persons not inconsistent with the supreme law, nor with this Constitution, and which have not expired nor been repealed, shall have the force of statute law, subject to judicial decision as to their validity when passed, and to any limitations imposed by their own terms"

—and that this board can still exercise all the powers with reference to county matters, including educational matters, that the justices of the inferior court possessed. This provision of the Constitution gives to this local act the force of statute law, and preserves to this board all powers which the justices of the inferior court had under the Code of 1867. Under this Code the justices of the inferior court had authority, upon the recommendation of the grand jury, to levy a tax upon the state tax, for educational purposes, of such per cent. as said jury might recommend; and in case the jury failed to act, then the justices could levy a tax for such purpose, not to exceed 25 per cent. upon the state tax. Code of 1867, §§ 1281, 1282. But this power, possessed by the justices of the inferior court, and given to the board of commissioners of roads and revenues of Floyd county by the act creating it, does not confer upon this board the power to declare what kinds of education shall be provided. The plan and system of county education was to be fixed by the then county board of education, or, on their default in this matter, the plan and system provided by law prior to December 13, 1859, prevailed.

The justices of the inferior court were without power to declare and define educational purposes; but could only levy a tax to carry out such purposes when defined and fixed by the proper authorities. At the date of Irwin's Code the educational system of Georgia consisted of the University of Georgia, the Georgia Military Academy, the Academy for the Blind, the Academy for the Deaf and Dumb, county academies, and common schools. Code of 1867, § 1197 et seq. There was a board of education for each county, made up of justices of the inferior court, the...