Irvin v. Gregory

• Decision Date: 07 February 1891
• Citation: 13 S.E. 120,86 Ga. 605
• Parties: Irvin et al. v. Gregory et al.
• Court: Georgia Supreme Court

13 S.E. 120

86 Ga. 605

Irvin et al. v. Gregory et al.

Supreme Court of Georgia

February 7, 1891

Syllabus by the Court.

1. A majority of the complainants having voted in favor of the approval of the local school law now in question, and all of them having acquiesced in the result of the election until after a school was established and put into operation, the judge was warranted in denying an interlocutory injunction to restrain the collection of a tax authorized by the local law and levied thereunder for supporting the public school system provided for by said law. Any infirmity in the law or in the election was as good cause for enjoining the establishment of the schools before the expense was incurred as it would be now for arresting the collection of revenue with which to defray the expense.

2. The general rule is that provisions in a statute for advertising a proposed election are mandatory unless the time and place of such election are fixed by the legislature, yet where the advertisement prescribed was publication once a week for four weeks, and the last publication was inadvertently omitted but the other three were duly made, the omission may be treated as a mere irregularity if more than two-thirds of the qualified voters actually voted, and if the result has been acquiesced in until after action has been taken on the faith thereof by which substantial rights have arisen.

3. In a local statute authorizing the establishment of public schools in a town a provision that the local board may admit pupils not residents of the town on such terms as the board may prescribe is not to be construed as allowing the board to prescribe terms which would cast upon the town or its inhabitants any part of the expense of educating non-resident pupils. Such pupils cannot be received at a less rate per scholar than the inhabitants of the town pay by taxation for their children, nor can they be received at all to the exclusion of resident children who would otherwise attend.

4. In so far as municipal public schools perform the functions of common schools, they must be free to all the children of the municipality just as the common schools in general are free to all children of the state. This results from the scheme of the constitution in regard to public schools. It follows that the action of an incidental fee to be paid by each and every pupil as a condition of admission into the public schools of a town, though constitutional, as applied to non-resident pupils, would be unconstitutional if applied to resident pupils also.

5. The main purpose of a statute passed by the general assembly, and approved by two-thirds of the qualified voters of a given town, being to establish and maintain a system of public schools in and for said town, an unconstitutional requirement therein, which exacts an incidental fee annually of all pupils, thereby including resident as well as non-resident pupils, will not necessarily vitiate the whole statute. If as matter of fact, the means otherwise provided for establishing and maintaining the schools are sufficient for the purpose, the law can have effect, notwithstanding the failure of the legislative and the popular intent touching the universality of the requirement for the payment of incidental fees.

6. Administrative acts on the part of the local board of education, even if erronous or wrongful, and amenable to proper remedial proceedings, furnish no cause for enjoining the collection of a school tax legally assessed.

Error from superior court, Stewart county; Fort, Judge.

Bleckley C.J.

1. The election was held on the 19th day of July, 1890. This bill was filed on the 20th of October, 1890. In the mean time the local board of education provided for by the act had gone to work, established and opened a school, and the school had been in actual operation for about six weeks before any steps were taken by the complainants to have the election declared illegal. More than half of them had voted in the election in favor of the school law, and all of them acquiesced in the result until after a school had been organized and put to work. This involved expense, and the complainants stood by and permitted the expense to be incurred, when full diligence on their part in making an application for injunction would have raised the question which they now seek to make in time to have put the question on its own merits, uncomplicated with the consequences of delay in making it. Under these circumstances the judge was warranted in denying a preliminary or interlocutory injunction on the application of these complainants, who sue, not in behalf of the citizens of the town generally, but for their own separate benefit and protection. If they have any good cause for enjoining the collection of the tax that cause would have been equally good for enjoining the establishment and opening of the school at the expense of the town,-an expense which they must have known was incurred with the expectation that a tax would be imposed to defray it. In the view of a court of equity it would not be altogether conscientious for citizens of a town to acquiesce in the establishment of a public school system for the benefit of the town until that benefit had been secured, and then object to contribute their pro rata of taxation necessary to defray its expenses for the first year. Especially is this true of most of the complainants; for they not only acquiesced, but took an active part by their votes in causing a public school system to be adopted. That the objection now urged against the tax might as well have been urged against the creation of the municipal obligation rendering the tax necessary, see Hudson v. Marietta, 64 Ga. 286; County of Dougherty v. Boyt, 71 Ga. 484; Gavin v. City of Atlanta, (Ga.) 12 S.E. 262; Crampton v Zabriskie, 101 U.S. 601, 609; Howell v. City of Peoria, 90 Ill. 104; 1 Dill.Mun.Corp. (4th Ed.) § 197 et seq.; Cooley, Tax'n, 764. Of the thirteen complainants one is a woman, and had no vote in the election, and another is a man who voted against the measure; but these two have linked their fortunes in this bill with the other complainants, seven of whom voted in favor of the approval of the local law authorizing the establishment of the school.

2. Perhaps what we have already said would be enough to dispose of the case in so far as the element of interlocutory injunction is concerned; but as we have held it up for a considerable time for the purpose of dealing with it in a broader and more comprehensive way, we shall express our opinion upon several of the points in controversy argued at the bar, and on which a decision was invoked. Did the want of a strict compliance with the terms of the statute in advertising the election render the election void? The constitutional provision under which the act was passed reads as follows: "Authority may be granted to counties upon the recommendation of two grand juries, and to municipal corporations on 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." Code, § 5207. The provision in the act of 1889, (pages 1305, 1306,) under which the election was held, reads thus: "This act shall be submitted to an election for approval or disapproval by the qualified voters of the town of Lumpkin; said election to take place on such day as the mayor and council may determine, notice of which election shall be given by the mayor of said town by publication in any newspaper published in the town of Lumpkin once a week for four weeks previous to the day of election. Those favoring public schools shall have printed or written on their ballots, 'For public schools,' and those opposing shall have printed or written on their ballots, 'Against public schools.' That said election shall be held in the same manner as elections for mayor and council of the town of Lumpkin are held, and all those qualified to vote at an election of mayor and council of said town shall be permitted to vote at the election herein provided for. The managers of said election shall certify the number of votes cast 'for public schools' and 'against public schools' to the mayor and council of said town of Lumpkin, and if two-thirds of the qualified voters of said town shall vote 'for public schools' the mayor of said town shall so declare in writing, and publish his said declaration once in any newspaper published in said town, and upon said publication this act shall take effect and be of force, and the public schools therein provided for shall be put in operation as soon as deemed practicable by said board of education of the town of Lumpkin." The election was advertised in the proper newspaper for a period of four weeks before the day of election, but there...