McGill v. Osborne

• Decision Date: 18 November 1908
• Citation: 62 S.E. 811,131 Ga. 541
• Parties: McGILL v. OSBORNE et al.
• Court: Georgia Supreme Court

62 S.E. 811

131 Ga. 541

McGILL v. OSBORNE et al.

Supreme Court of Georgia

November 18, 1908

Syllabus by the Court.

A mandamus will not lie to compel an officer to do an act which he has no legal power to perform when the application for the writ is made.

[Ed Note.-For other cases, see Mandamus, Cent. Dig. §§ 39-41; Dec. Dig. § 12. ^[*]]

A court will always abstain from passing upon the question of the constitutionality of an act of the Legislature, if there be any other ground in the case upon which to rest its decision.

[Ed Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 43-45; Dec. Dig. § 46. ^[*]]

Error from Superior Court, Catoosa County; A. W. Fite, Judge.

Application of J. W. Osborne and others for writ of mandamus to I. L McGill. From an order granting the writ, defendant brings error. Reversed.

W. E Mann, for plaintiff in error.

R. J. & J. McCamy, for defendants in error.

FISH C.J.

J. W. Osborne, W. W. Benton, and J. P. Mardis applied to the judge of a superior court for a mandamus to compel I. L. McGill, county school commissioner of Catoosa county, to pay the petitioners, as trustees of the public school in the town of Boynton, Catoosa county, the amount due such school from the public school fund of the county. The petitioners alleged that they were elected trustees of the public school of Boynton in accordance with an act of the General Assembly approved August 22, 1907 (Acts 1907, p. 467], incorporating such town, providing for a system of public schools therein, and requiring the county school commissioner to pay over to the trustees of such school its share of the public school fund of the county. It was alleged in the petition that there were 33 children of school age in the town, a list of whom was attached as an exhibit to the petition, and that there was due to the school from the public school fund of the county, on account of these children, "a sum of money approximating, if not reaching, $100." It also appeared from the petition that petitioners, as such trustees, in December, 1907, applied to McGill, county school commissioner, for the payment of such sum, and that the board of education of Catoosa county, on January 7, 1908, in prorating the public school funds of the county among the school districts, expressly declined to recognize the town of Boynton as entitled to any portion of the fund, on the ground that the act of the General Assembly providing for the payment of a portion of the common school fund to the trustees of the public school of Boynton was in conflict with the general school laws and would be injurious to the surrounding school districts. The petition alleged that this act of the board of education of the county was illegal and wrongful.

The answer of the county school commissioner set up that "the pro rata going to each child is $2.60 of public school money," but claimed that the act under which petitioners were proceeding was unconstitutional, for various specified reasons, in so far as it sought to establish a school district in the town of Boynton and to entitle the public school therein to a pro rata of the public school fund. As a further reason why a mandamus should not be granted, the answer alleged that, even if the act in question were valid and constitutional, mandamus should not be granted, because the act provides that the county school commissioner shall pay out the county school fund after an estimate made by the board of education of the county upon some plan adopted by such board, and that the board had never made any such estimate nor adopted any plan, and that therefore the respondent was without power or legal authority to pay out any of the public school fund of the county. Upon the hearing a mandamus absolute was granted, and the respondent directed to pay to petitioners the sum of $85.80, "the sum admitted to be due petitioners if they can lawfully demand the same." To this judgment the respondent excepted.

1. The act incorporating the town of Boynton (Acts 1907, p. 467) under the provisions of which the petitioners for mandamus, claiming to be the trustees of the public school of Boynton, alleged that they were entitled to receive the money which they sought by mandamus to compel the county school commissioner of Catoosa county to pay them, provides, in section 12 thereof: "That the school commissioner of the county of Catoosa is hereby authorized and required to pay over to the trustees of the Boynton school system the proportion of the common school fund arising from any source, belonging to said town, to be estimated by the board of education of said town upon any...