McLennan v. Aldredge

• Decision Date: 04 January 1968
• Docket Number: Nos. 24365,24388,24387,s. 24365
• Citation: 223 Ga. 879,159 S.E.2d 682
• Parties: Alex McLENNAN v. James H. ALDREDGE, Commissioner et al. W. L. ROBINSON, Member of County Board of Education et al. v. Alex McLENNAN et al. James H. ALDREDGE, Commissioner et al. v. Alex McLENNAN et al.
• Court: Georgia Supreme Court

Page 682

159 S.E.2d 682

223 Ga. 879

Alex McLENNAN v. James H. ALDREDGE, Commissioner et al.

W. L. ROBINSON, Member of County Board of Education et al. v. Alex McLENNAN et al.

James H. ALDREDGE, Commissioner et al. v. Alex McLENNAN et al.

Nos. 24365, 24387, 24388.

Supreme Court of Georgia.

Jan. 4, 1968.

Syllabus by the Court

1. The ballot which submitted the 1937 constitutional amendment to Article 7, Section 6, Paragraph 2 (Code Ann. § 2-5402, Ga.L.1937, p. 18) to the people for ratification was sufficient under the prevailing provisions of the Constitution of 1877 (Art. 13, Sec. 1, Par. 1, Code § 2-8601).

2. The Constitution of Georgia of 1945 (Art. 7, Sec. 10, Par. 1, Code Ann. § 2-6301) specifically incorporated therein local amendments to the Constitution of 1877 which were in effect at the time of the submission of the 1945 Constitution to the people for ratification.

3. Article 7, Section 4, Paragraph 1 (Code Ann. § 2-5701) of the Constitution of 1945 is a restriction on the power of the General Assembly to delegate to a county certain rights to levy a tax and has no application to a constitutional amendment.

4. The 1937 constitutional amendment to Article 7, Section 6, Paragraph 2 (Code Ann. § 2-5402, Ga.L.1937, p. 18) is in harmony with Article 8, Section 12, Paragraph 1 (Code Ann. § 2-7501) of the Constitution of 1945 and is cumulative thereof.

5. The 1937 constitutional amendment to Article 7, Section 6, Paragraph 2 (Code Ann. § 2-5402, Gal.L.1937, p. 18) does not violate the equal protection and due process clauses of the Fourteenth Amendment to the Federal Constitution.

Alex McLennan, Atlanta, in pro. per.

Harold Sheats, Paul Anderson, Sutherland, Asbill & Brennan, James P. Groton, Madison Richardson, Atlanta, James H. Aldredge, Comr., and others.

Sutherland, Asbill & Brennan, James P. Groton, Madison Richardson, Atlanta, for W. L. Robinson and others.

UNDERCOFLER, Justice.

This is a class action brought by a taxpayer of the City of Atlanta and Fulton County to enjoin the officials of Fulton County from collecting a county school tax and to have such county school tax levy declared null and void. The tax was imposed under authority of the 1937 amendment (Ga.L.1937, p. 18, ratified June 8, 1937) to Article 7, Section 6, Paragraph 2 (Code § 2-5402) of the Constitution of 1877 which amendment provides: 'Furthermore, in any county in the State which has wholly or partly within its boundaries a city of not less than 200,000 population the county authorities thereof are hereby directed upon the request of the board of education of such county annually to levy a tax not exceeding 1 1/2 mills for educational purposes, on all the taxable property throughout the entire county, including territory embraced in independent school systems, the same to be appropriated to the use of the county board of education and to educational work directed by them.'

The petition alleges that now and at the time of the submission of the 1937 amendment to the people for ratification the City of Atlanta had an independent school system for which an annual ad valorem tax is levied; that Fulton County has a separate and distinct school system outside the City of Atlanta's independent school system for all county residents residing outside said city; and tht the children of the City of Atlanta can not attend the Fulton County school system without paying a fee therefor.

The petition asserts that the tax is illegal for the following reasons: (1) The 1937 constitutional amendment authorizing such levy was not properly submitted to the people for ratification or rejection and consequently did not become a valid amendment to Article 7, Section 6, Paragraph 2 (Code Ann. § 2-5402) of the Constitution of 1877 which was in effect at the time of the adoption of the 1945 Constitution; (2) The 1937 amendment was superseded entirely by the adoption of the 1945 Constitution wherein all previous Constitutions were repealed; (3) Said levy violates Article 7, Section 4, Paragraph 1 of the 1945 Constitution (Code Ann. § 2-5701) and is illegal, null and void; (4) The 1937 constitutional amendment was superseded entirely by the adoption of the 1945 Constitution wherein all previous Constitutions were repealed by Article 8, Section 12, Paragraph 1 (Code Ann. § 2-7501) and that the provisions of the 1945 Constitution are exclusive authority for levying school taxes; (5) The 1937 constitutional amendment violates the due process and equal protection clauses of the Fourteenth Amendment to the Federal Constitution.

The defendants filed general demurrers to the amended petition, and upon an interlocutory hearing the trial court overruled the demurrers and denied the temporary injunction. The appeals are from these rulings. The appellant contends that the court erred in denying the injunction. The cross appellees contend that the general demurrers should have been sustained.

1. The 1937 constitutional amendment (Ga.L.1937, p. 18) set out above was submitted to the people on ballots which provided for or against 'ratification of amendment to Paragraph 2, of Section 6, of Article 7, of the Constitution authorizing 1 1/2 mill county-wide tax for educational purposes in counties having cities of more than 200,000 population, wholly or partly within their boundaries.'

The plaintiff contends that the formula adopted by the legislature for the submission of said amendment as above printed on the ballot was vitally and essentially different from the amending Act which sought to affect a county 'which has wholly or partly within its boundary a city of not less than 200,000' whereas the formula for the ballots adopted by the legislature for the submission of the amendment to the people contained the language 'in counties having cities of more than 200,000 population'; that the language of the amending Act shows that it could never affect or pertain to more than one county and to one city in the State; and that since the formula adopted by the legislature and used on the submission ballot did not specifically state that the tax would be used only for the county schools, as provided in the body of the amendment, the voters were misled concerning the nature, character and scope of the proposed tax. Because of these reasons, the plaintiff insists that the amendment was not properly ratified, never became a part of the 1877 Constitution and accordingly is not a valid part of the 1945 Constitution.

It was held by this court in Cooney v. Foote, 142 Ga. 647, 654, 83 S.E. 537, 540, that: 'Article 13 of the Constitution did not prescribe the details relating to the manner of submission (of amendments to the Constitution of 1877), but left them to the wisdom of the Legislature. It did provide for the publication of the proposed amendment, as a means of giving wide and extensive information of the exact nature of the proposed change or addition. It was never contemplated that the entire proposed amendment should be printed on the ballot. It was within legislative discretion to adopt some formula by which the voter would express his assent or dissent to the proposed amendment. The formula prescribed by the Legislature was not intended for the purpose of informing the voter as to the full contents of the amendment. On the contrary, the formula was intended as the declaration by the voter of his approval or disapproval of the amendment which had been published in each congressional district. The amendment was submitted to the elector, and the formula prescribed was simply to elicit his expression as to whether or not the proposed amendment should become a part of the organic law. The formula written or printed on his ballot was but the legislative means of obtaining his expression upon the published proposal; and when he adopted the formula he indicated his vote upon the whole amendment which was submitted, and not a mere part.' See also Townsend v. Smith, 144 Ga. 792, 796, 87 S.E. 1039.

In Goolsby v. Stephens, 155 Ga. 529, 540, 117 S.E. 439, 444, this court held: 'Section 3 of the act proposing this amendment provides that the entire amendment should be submitted to the electors of the state for ratification or rejection. It was not necessary that the entire amendment should have been printed on the ballots. The reference on the ballots to the proposed amendment is to inform the voters what they are voting for an an amendment to the Constitution, and such reference is sufficient when it contains enough to enable the voters to ascertain for what amendment they are voting. When this is done, the voters can be fully informed as to its full provisions by looking to the proposed amendment. What is adopted as an amendment to the Constitution is not what is printed on the ballots, but what is contained in the proposal for amending the Constitution. The submission of the proposed amendment was sufficient.'

In this case the formula which the legislature adopted was printed on the ballots submitted to the voters, and the ballot was sufficient under the above quoted decisions of this court and the prevailing provisions of the 1877 Constitution (Article 13, Section 1, Paragraph 1, Code § 2-8601) to inform the voters for what amendment they were voting.

The case of Seago v. Richmond County, 218 Ga. 151, 126 S.E.2d 657 is distinguishable from the instant case. That case dealt with an amendment to the Constitution of 1945 and was decided upon an interpretation of Ga.L. of 1939, p. 305, which was passed subsequent to the ratification of the 1937 amendment to the Constitution of 1877 under attack here.

2. The contention that the 1937 constitutional amendment to Article 7, Section 6, Paragraph 2 (Code Ann. § 2-5402) of the Constitution of 1877 was superseded by the adoption of the 1945 Constitution is without merit. The Constitution of 1945 specifically incorporated therein local amendments to the Constitution of 1877 which were in effect at the time of the...