Fordham v. Sikes

Citation81 S.E. 208,141 Ga. 469
PartiesFORDHAM et al., Board of Education. v. SIKES et al., Road & Revenue Com'rs.
Decision Date10 March 1914
CourtSupreme Court of Georgia

(Syllabus by the Court.)

Constitutional Law (§ 48*)—Counties (§§ 2, 190*)—Taxation—Right to Levy Tax-Construction of Statute.

Where, in accordance with the provisions of the Constitution, art. 8, § 4, par. 1, an election had been held in a county to determine the question of levying a tax for school purposes, which resulted in favor of such tax, and it had been levied accordingly for several years, and where, by constitutional amendment, a new county was created from a part of the territory of the old one, this did not authorize the authorities in the new county to levy a tax for school purposes without a submission of the question to the voters thereof.

(a) If a statute is equally susceptible of two

constructions, one of which will harmonize it with the Constitution and the other of which will render it unconstitutional, the former construction is generally to be preferred.

(b) Where a constitutional amendment creating a new county declared that certain general statutory provisions should apply to it, and that it should become "a statutory county, and shall be at all times subject to all laws applicable to all other counties in this state, " this did not adopt the statutory law to which reference was made as constitutional law, or cause the new county to occupy a different position from other counties relatively to such statutes.

[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. S 46: Dec. Dig. § 48;* Counties, Cent. Dig. §§ 2, 121; Dec. Dig. §§ 2, 92.*]

Error from Superior Court, Wheeler County; E. D. Graham, Judge.

Mandamus by J. B. Fordham and others, constituting the Board of Education of Wheeler County, against J. F. Sikes and others, as Commissioners of Roads and Revenues of that County. Judgment for defendants, and plaintiffs bring error. Affirmed.

J. B. Fordham and others, as constituting the board of education of Wheeler county, filed their petition for a writ of mandamus against J. F. Sikes and others, as commissioners of roads and revenues of that county. The petition alleged in substance as follows: The county of Wheeler was created by an act of the General Assembly approved August 14, 1912, and was organized by the election of county officers on the first Tuesday in January, 1913. The territory embraced in the new county was entirely from the territory of Montgomery county. (The act of 1912 proposed a constitutional amendment creating the new county of Wheeler, and was ratified by the voters of the state.) At the first term of the superior court of Wheeler county, held in March, 1913, the grand jury elected a board of education for that county, and the petitioners have since been performing the duties devolving upon such board. By an act approved August 19, 1913 (Acts 1913, p. 459), the board of commissioners of roads and revenues of that county was created; one of the duties devolving upon them being the levying of county taxes. The defendants constituted that board. On September 27, 1906, the county of Montgomery, from which the territory embraced in the county of Wheeler was taken, held an election to determine whether or not the people of the former county wished to have a local tax levied for the purpose of supplementing the public school fund received from the state. The election resulted in favor of the local tax, and it has since been levied each succeeding year. Civil Code 1910, § 1534, under which the election was held, was in force in the territory embraced in Wheeler county (being previously a part of Montgomery county) at the date of the creation and organization of the new coun-ty. By virtue of this law petitioners, at their regular meeting on May 7, 1913, recommended that a local school tax for Wheeler county, of three mills, be levied and collected during that year, for the purpose of supplementing the school fund received from, the state for the support of the common schools of the county, and the recommendation was spread upon the minutes. After the board of commissioners of roads and revenues entered upon the discharge of their duties, petitioners gave notice to the chairman of that board of the recommendation above mentioned. This notice was given on August 30th, and again on November 7, 1913. Notwithstanding this, the board of commissioners of roads and revenues failed and refused to levy the tax so recommended, although they have levied taxes for other purposes, and the tax collector is proceeding to collect such other taxes. Petitioners and the people of Wheeler county will not have the money, to which they are entitled under the law, to aid them in operating the public schools of the county during the year 1913, unless the court will require the board of commissioners of roads and revenues to levy the tax for school purposes.

The defendants demurred on the following, among other, grounds: (1) The petition set out no cause which would entitle the plaintiffs to the relief sought. (2) It appears from the petition that there has never been an election to determine the question of local taxation for school purposes in Wheeler county, and there can be no tax levied for that purpose without such an election, under the Constitution of the state. (3) It appears from the petition that the plaintiffs are relying on an election held in Montgomery county in the year 1906, and on Civil Code 1910, § 844, to put the local school tax law into effect in Wheeler county; that the provision of section 844, to the effect that "all local and general laws having local application, in force within the territory included within the limits of a new county, are to be in full force and effect within such territory, " is in conflict with article 8, § 4, par. 1, of the Constitution, which provides that authority may be granted to counties to establish and maintain public schools in their respective limits by local taxation, but no such laws shall take effect until the same shall be submitted to a vote of the qualified voters in each county and approved by a two-thirds majority of persons voting at such election, and the...

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6 cases
  • DeJarnette v. Hospital Authority of Albany
    • United States
    • Supreme Court of Georgia
    • December 3, 1942
    ...... will render it unconstitutional, the former construction is. generally to be preferred. Fordham v. Sikes, 141 Ga. 469(a), 81 S.E. 208. We conclude therefore that the statute. is not unconstitutional as attempting to authorize the. creation ......
  • Dejarnette v. Hosp. Auth. Of Albany, 14363.
    • United States
    • Supreme Court of Georgia
    • December 3, 1942
    ......Fordham v. Sikes, 141 Ga. 469(a), 81 S.E. 208. We conclude therefore that the statute is not unconstitutional as attempting to authorize the creation of a ......
  • Wood v. Arnall
    • United States
    • Supreme Court of Georgia
    • December 4, 1939
    ...... should be construed as not applying to that office. Mayes. v. Daniel, 186 Ga. 345, 198 S.E. 535; Fordham v. Sikes, 141 Ga. 469, 81 S.E. 208. The provisions of the. constitution 'are fundamental and controlling. They rank. above all legislative or ......
  • Wood v. Arnall, 13000.
    • United States
    • Supreme Court of Georgia
    • December 4, 1939
    ......Mayes v. Daniel, 186 Ga. 345, 198 S.E. 535; Fordham v. Sikes, 141 Ga. 469, 81 S.E. 208. The provisions of the constitution "are fundamental and controlling. They rank above all legislative or ......
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