Mayor v. Simmons

• Decision Date: 29 July 1895
• Citation: 23 S.E. 508,96 Ga. 477
• Parties: MAYOR, ETC., OF GAINESVILLE v. SIMMONS et al.
• Court: Georgia Supreme Court

23 S.E. 508

96 Ga. 477

MAYOR, ETC., OF GAINESVILLE

v.SIMMONS et al.

Supreme Court of Georgia.

July 29, 1895.

Act to Establish Schools — Amendment — Partial Unconstitutionality—Effect—County School Commissioner—Payments.

1. Where the general assembly, upon the recommendation of the corporate authorities of a city, passed an act to establish and maintain public schools therein "for as much as six months in each year, " the act providing that "no local tax levied and collected for said purpose shall ever in one year exceed one-fourth of one per cent, on the taxable property of said city, " which act "was duly submitted to and approved by the qualified voters of the city, and a system of public schools was established thereunder, it was competent for the general assembly, without another recommendation from the corporate authorities, and without providing for another submission to the qualified voters, to amend the act in question by authorizing the schools to be continued "for as much as ten months in each year, " the amending act distinctly providing that the amount of tax to be levied for school purposes should not exceed the rate authorized by the original act.

2. Both these acts were unconstitutional, in so far as they authorized the exaction of matriculation or admission fees from pupils residing in the city, and to that extent cannot be enforced; but this does not vitiate the other portions of the acts, which are consistent in their provisions with the requirements of the constitution.

3. The judgment of the court below was correct, in so far as it enjoined the defendants from charging pupils residing in the city matriculation or admission fees before admitting them to the benefits of the schools; but in so far as it enjoined the county school commissioner from making payments out of the public school fund of the state to the defendants, it was erroneous, it appearing that the plaintiffs could not be injuriously affected by the payments complained of, and also that they had no right to raise any question concerning the same. The judgment was also erroneous in so far as it enjoined the defendants from maintaining schools for a longer time than six months in each year, or from using, for the purpose of so doing, the funds received by them

(Syllabus by the Court.)

Error from superior court, Hall county; J. J. Kimsey, Judge.

Petition by B. F. Simmons and others against the mayor and council of Gainesville for injunction. There was a decree for plaintiffs, and defendants bring error. Affirmed in part, and in part reversed.

Perry & Craig, for plaintiffs in error.

L. D. Puckett and H. H. Dean, for defendants in error.

LUMPKIN, J. We shall not deal specially with all of the various questions presented by the record in this case, but shall refer briefly to those only of them which are of controlling importance. The plaintiffs below undertook by equitable petition to restrain the mayor and council of Gainesville from doing certain acts in maintaining the public schools of that city which had been established under legislative enactments. The injunction prayed for was in part granted and in part refused. The material points in the case will appear from what is said below.

1. In 1883, the general assembly, upon the recommendation of the corporate authorities of Gainesville, passed an act amending the charter of that city, and providing for the establishment and maintenance of public schools "for as much as six months in each year." This act also declared that "no local tax levied and collected for said purpose shall ever in one year...