Chappell v. Small

• Court: Georgia Supreme Court
• Writing for the Court: GRICE, Justice.
• Citation: Chappell v. Small, 194 Ga. 143, 20 S.E.2d 916 (Ga. 1942)
• Decision Date: 21 May 1942
• Docket Number: 14111.
• Parties: CHAPPELL et al. v. SMALL, Tax Com'r, et al.

20 S.E.2d 916

194 Ga. 143

CHAPPELL et al. v. SMALL, Tax Com'r, et al.

No. 14111.

Supreme Court of Georgia

May 21, 1942

Rehearing Denied June 15, 1942.

Syllabus by the Court.

1. Code sections 64-107 and 64-108, which in effect provide that the judge may without a jury determine an application for mandamus when the answer to the mandamus nisi shall involve no issue of fact, but that if an issue of fact be involved the same shall be tried before a jury, must be taken in connection with the amendment to paragraph 8, section 4, of article 6 of the constitution of this State (Ga.Laws 1939, p 78), which was ratified on June 6, 1939, and which in terms provides that 'the judge of said [superior] courts may on reasonable notice to the parties, at any time, in vacation, at chambers, hear and determine, by interlocutory or final judgment, any matter or issue, where a jury verdict is not required, or may be and has been waived.'

2. Where the answer to a petition for mandamus presents an issue of fact, but there is no motion to refer the same to a jury, and no objection to the determination by the judge himself of the issue of fact so made, and both parties introduce evidence before the judge on the disputed issue, and where no exception is taken to the fact that the judge determined the case without referring the same to a jury, the parties will be held to have waived trial by jury, within the meaning of the aforesaid amendment to the constitution.

3. Where the judge has before him the petition of the solicitor-general brought against a school district, to validate bonds issued by said district, and the school district being the sole defendant, no parties having become parties by intervention, and it not appearing from the validation proceedings that any issue was raised as to whether or not certain designated territory was included within the boundaries of said school district, and the order of validation making no reference thereto, although reciting that a map of said school district is of file in the office of the ordinary of the county, the judgment in its express terms being in favor of the issuance of the bonds, and that 'the said proposed issue is hereby validated and confirmed as required by law in such cases made and provided,' such judgment of validation will not be construed to mean that the bonds were validated only on condition that property located in a certain district as it existed at the time the election was held would be exempted, although it be shown that at the validation hearing a map was attached to the response of the school district, which tended to show that such property was not included within the district at the time of the hearing.

4. When an election was held in a school district to determine whether or not bonds for such school district should be issued, and the election resulted in favor of such bonds, which were duly validated, property embraced within the territory which at the time of such election was contained within such school district is liable for its proportionate part of the taxes necessary to be raised for the purpose of discharging such bonded indebtedness.

In April and in August, 1921, the Board of Education of Sumter County, Georgia, passed resolutions that certain territory known locally as the Blue Belt, consisting of a part of a duly organized school district known as Lysian School District in said county, be joined to the Smithville School District in Lee County, subject to the approval of such action by the Lee County Board of Education. On November 22, 1921, the Board of Trustees of the Lysian School District in Sumter County, reciting in its order that more than one fourth of the qualified voters in said district had made application therefor, ordered an election to be held in said Lysian School District on December 22, 1921, to determine whether there should be an issue of $25,000 of school bonds for said district, for the purpose of erecting a school building in said district; and on December 22, 1921, after all legal requirements therefor had been complied with, an election was held for such purpose. Up to that time the Lee County authorities had not acted upon the resolutions passed by the Sumter County Board of Education transferring, subject to the approval of the Lee County authorities, certain specified lots in the Lysian School District in Sumter County. The election on December 22, 1921, in which one or more residents of the Blue Belt territory participated, resulted in favor of the issuance of the bonds. The legal validation of the bonds was set for hearing on January 21, 1922, on which date the matter was heard by Honorable Z. A. Littlejohn, then judge of the superior courts of the Southwestern Circuit embracing Sumter County; and judgment was rendered in favor of the issuance of the bonds. The bonds to be issued were to bear date March 1, 1922, maturing at different future dates; and to pay the interest and the principal of said bonds as they became due the Trustees of Lysian School District levied a tax on all taxable property in said district.

In April, 1941, Refus Chappell and C. F. Cosby, constituting a majority of the trustees of the Lysian School District, filed in Sumter superior court a petition for the writ of mandamus against I. B. Small, tax commissioner of Sumter County, requiring him to collect from named parties alleged to be in default in the payment of their taxes for the principal and interest on said bonds. John D. Williams and others, alleged in the petition to be in default in the payment of their school-bond tax above indicated, who owned property in the Blue Belt territory, filed their response, and averred therein that by the concurrent assent of the Boards of Education of Sumter and Lee Counties they were annexed to the Smithville School District in Lee County, and that they did not come within the operation of the bond issue, as was shown by a plat or map on file in the ordinary's office on January 21, 1922, and referred to by Judge Littlejohn in his order validating and approving the bond issue. Evidence was submitted, including certified copies of the minutes of both the Sumter County board and the Lee County board. The minutes of the latter showed that on February 6, 1922, the Lee County Board of Education accepted the transfer by the Sumter County Board of Education of specified lots formerly embraced in the Lysian School District of Sumter County to the Smithville School District in Lee County. The minutes of the Sumter County Board of Education showed that on August 25, 1925, that board rescinded their action taken in 1921 consenting to the annexation of territory embraced in the Lysian School District to the school districts in Lee County. John D. Williams, one of those alleged to be in default, testified that before the bonds were validated he and one or two others in like position with him appeared before the Lee County Board of Education on the day before the judgment validating the bonds; and further: 'The Board of Education in Lee County met about nine o'clock. I got there before they met. I left after they adjourned about twelve o'clock. These bonds were validated the next day. I did not get a writing from them that we had been accepted, but Judge Littlejohn told Mr. Shipp [one of the attorneys for the Lysian School District], 'If this be true, I am not going to validate these bonds.' The next evening we got a showing that we had been accepted, and brought it up here. I don't remember now what shape it was in. Mr. W. A. Jones and Charlie Israel went and got it. I could not tell you where it is; they brought it to the court here.'

The judge denied a mandamus absolute, and dismissed the proceedings, and the plaintiffs excepted.

R. L. Maynard, of Americus, for plaintiffs in error.

W. W. Dykes, H. O. Jones, and Dykes, Bowers & Dykes, all of Americus, for defendants in error.

GRICE Justice.

1, 2. The response made by the tax commissioner and that of certain other persons who were intervenors raised an issue of fact; and under the Code, §§ 64-107, 64-108, the judge on an inspection of the pleadings would have been compelled to refer the same to a jury, there to be determined as other jury causes are tried, except for the provision of the amendment to paragraph 8 of section 4 of article 6 of the constitution of this State (Ga.L.1939, p. 78), which in terms provides that: 'The judges of said [superior] courts may, on reasonable notice to the parties, at any time, in vacation, at chambers, hear and determine, by interlocutory or final judgment, any matter or issue, where a jury verdict is not required, or may be and has been waived.' On the day fixed by the rule nisi for the hearing the tax commissioner and the intervenors appeared, and the trial, without objection, began before the judge without a jury. Testimony was introduced, and so far as the record shows no point was raised as to the desire of either party to have the issues of fact raised by the pleadings passed upon by a jury. No motion was made to refer the issues to a jury, and there is no exception in the record to the fact that the judge heard the testimony without a jury and entered the final judgment in the cause. Under these circumstances it must be held that a jury trial was waived.

3. Counsel for the intervenors who opposed the grant of the mandamus insist that the very terms of Judge Littlejohn's order validating the bonds, taken in connection with the proof as to what transpired at that hearing, show that he refused to validate them until the parties had agreed that certain territory referred to in the briefs as the Blue Belt in Sumter County should be eliminated. The record of the validation...