Edalgo v. Southern Ry. Co

• Decision Date: 13 August 1907
• Citation: 58 S.E. 846,129 Ga. 268
• Parties: EDALGO, Town Collector, et al. v. SOUTHERN RY. CO.
• Court: Georgia Supreme Court

58 S.E. 846

(129 Ga. 268)

EDALGO, Town Collector, et al.

v.SOUTHERN RY. CO.

Supreme Court of Georgia.

Aug. 13, 1907.

1. Constitutional. Law—Pleading—Unconstitutionality ov Statute.

An allegation that a given statute is unconstitutional, in that it violates the constitutional provision which prohibits the passage of a special law in any case for which provision has been made by an existing general law, which fails to point out the general law which is claimed to cover the same subject as such statute, presents no question for decision by this court.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 10, Constitutional Law, § 44.]

2. Schools and School Districts — Creation— Repeal ov Statute.

The act approved August 22, 1905, creating the Jenkinsburg public school district (Acts 1905, p. 473), was repealed by the general act providing for the creation of local tax district schools, approved August 23, 1905 (Acts 1905, p. 425), as amended by the act approved August 21, 1906 (Acts 1906, p. 61).

3. Statutes—Amendments.

An act dealing with a single subject-matter, but with two phases of the same, which is held valid as to one phase, but inoperative as to the other, may be amended by an act relieving the defects applicable to the one portion, so as, in the single act, to complete the scheme of the original act.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 44, Statutes, § 202.]

4. Same — Repeals by Implication — Local Tax District Schools.

The act approved August 23, 1905 (Acts 1905, p. 425), as amended by the act approved August 21, 1906 (Acts 1906, p. 61), providing for the creation of local-tax district schools, and popularly known as the "McMichael School Law, " is not unconstitutional or otherwise invalid for any of the objections urged against it in the present case.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 44, Statutes, §§ 209, 210.]

(Syllabus by the Court.)

Error from Superior Court, Butts County; E. J. Reagan, Judge.

Action by the Southern Railway Company to enjoin J. S. Edalgo, town collector, and another. Judgment for plaintiff, and defendants bring error. Affirmed.

This was an application by the Southern Railway Company to enjoin the tax receiver and collector of Jenkinsburg public school district and the sheriff of Butts county from proceeding to collect two tax executions for school tax alleged to be due by the railway company to the authorities of said district, one for the year 1905, and the other for the year 1906. The judge granted an injunction, and the defendants excepted. The case was submitted to the judge upon the petition, a demurrer thereto, and the answer. The petition and answer were each verified, and they disclosed no issue of fact The case turns entirely on questions of law growing out of the undisputed facts, and these arise out of certain legislative enactments. Jenkinsburg public school district was incorporated under an act approved August 22, 1905. Acts 1905, p. 473. The district, as laid out, embraced territory lying in each of the counties of Butts and Henry. The town of Jenkinsburg, in Butts county, had been incorporated prior thereto. See Acts 1889, p. 876. The school district embraced territory not included in the town, for the town was wholly in Butts county. The act incorporating the school district provided for an election to ratify the act and to select school trustees, who were to discharge certain duties in the event the act was ratified; such election to be ordered immediately after the approval of the act The trustees were authorized to levy a tax for school purposes, and to elect a tax receiver and collector. The trustees were authorized to provide a digest, upon which the receiver and collector was to enter all property in the district subject to taxation in the manner prescribed in the act There was no distinct mention of railroad property in the act, but it used the broad terms above referred to. The election was held and the act ratified, as contemplated by the act. The act was amended by an act approved August 21, 1906. Acts 1906, p. 470. The amending act contained a voluminous preamble reciting compliance with the details of the original act, and provided all the minute details in a scheme for the assessment and collection of taxes upon all classes of property, the property of railroad companies being specifically mentioned, and this, as well as all other property, was to be returned to the receiver and collector of the district. The executions now in question were issued after the date of the amending act The original act was approved one day before the general act for the creation of local tax school districts; the latter act being approved August 23, 1905. Acts 1905, p. 425. The amending act was approved on August 21, 1906, the same day when the act amending the general act was approved. Acts 1906, pp. 61, 470.

The original Jenkinsburg district school act is attacked by the plaintiff and declared to be invalid for the following reasons, among others: (a) The act creates a school district embracing territory lying in two counties, (b) The local district school act was repealed by the general act approved the following day. (c) The local act is a special law in a case for which provision has been made by an existing general law. The amendment to the district school act is also attacked for various reasons. The defendants are at issue with the plaintiff on the questions of law raised by the petition, and they also attack the general acts and allege that they are invalid. The general act of 1905 is alleged to be unconstitutional for the following reasons: (a) It contains matter not indicated in the title, (b) It seeks to repeal and amend special acts not distinctly described, (c) It grants donations to chartered schools, (d) It seeks to give sectarian schools a portion of the pub-lie school fund, (e) The system for the district school, as to the amount of tax, collection of the same, and in other material particulars, is different from that provided when the whole county adopts the act, thus violating the provision of the Constitution that all taxation shall be uniform, (f) It provides for tuition against nonresident pupils, when the Constitution declares all public schools shall be free to all of the children of the state, (g) It authorizes the county board of education to increase the territory of a municipality for school purposes without submitting the question to a vote of the people of the new territory, (h) It seeks to disregard school districts in existence when the Constitution was adopted, (i) It lacks uniformity, in that when new territory for school purposes is added to municipalities, the government of the school differs according to the population of the municipality.

(j) It provides for the removal of a school trustee by the board of education, where there is a provision in Pen. Code, § 291, for the removal of officers, (k) It vests the power of impeachment in the county board of education, when the Constitution vests the power solely in the Senate. The act of 1906, amending the general act, is also attacked and alleged to be invalid for the following reasons: (a) The amending act is subject to the same criticisms as made upon the original act in the foregoing subdivisions lettered (a), (b), (c), (d), (e), (f), (g), and (h). (b) The original act was void, and there was nothing to amend, (c) It provides a method for summoning a defaulting taxpayer before the county tax receiver, and no method of summoning a defaulter before the comptroller general.

Moore, Gordon & Branch and J. D. Kil-patrick, for plaintiffs in error.

N. E. & W.A. Harris and McDaniel, Alston & Black, for defendant in error.

COBB, P. J. (after stating the facts as above). 1. The Jenkinsburg school district act was approved August 22, 1905 (Acts 1905, p. 473), which was one day before the general act for the laying out school districts was approved; and hence it cannot be said to be a special law in a case where provision had been made by an existing general law, so far as that general law is concerned. But there was, on August 22, 1905, a general law which made provision for the subject-matter dealt with by the Jenkinsburg act. That general law is contained in Pol. Code 1895, § 1353 et seq. It is there declared that each and every county shall compose one school district. The case, on its face, is therefore squarely within the ruling in Sellers v. Cox, 127 Ga. 246, 56 S. E. 284. But this point is not made with sufficient certainty in the petition for us to rest the case on that ruling. The petition avers that the local school act is a special law in a case where provision has been made by an existing general law, but it does not specify the general school law in the Code as that law. This was indispensable to raise the constitutional question. Sayer v. Brown, 119 Ga. 539, 46 S. E. 649 (5).

2. The Constitution of 1877 contained the following provision: "Authority may be granted to counties upon the recommendation of two grand juries, and to municipal corporations upon the recommendation of the corporate authority, to establish and maintain public schools in their respective limits, by local taxation; but no such local laws shall take effect until the same shall have been submitted to a vote of the qualified voters in each county or municipal corporation, and approved by a two-thirds vote of persons qualified to vote at such election; and the General Assembly may prescribe who shall vote on such question." Civ. Code 1895, § 5909. This provision clearly limited local school districts, so far as the taxing power was concerned, to two classes—counties and municipalities. The General Assembly had no authority to create other school districts and confer upon them taxing power. Barber v. Alexander, 120 Ga. 30, 47 S. E. 580. The constitutional provision above quoted was, in 1903, so amended as to read as follows: "Authority may be granted to counties, militia districts,...