Montgomery v. The Bd. Of Educ. Of Richmond County

• Decision Date: 30 September 1884
• Citation: 74 Ga. 41
• Parties: Montgomery, executor, et al. vs. The Board of Education of Richmond County et al.
• Court: Georgia Supreme Court

74 Ga. 41

Montgomery, executor, et al. vs. The Board of Education of Richmond County et al.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1884.

Richmond County. Education. Tax. Laws. Constitutional Law. Before Judge Roney. Richmond Superior Court. October Term, 1884.

The plaintiffs filed their bill to enjoin the collection of the tax of two and three-tenths mills on each dollar of property in Richmond county as a school tax, under an assessment made by the board of education of that county. The general nature of this tax, and the resistance thereto, may be seen in the report of the case of Smith et al. vs. Bohler et al, 72 Ga., 546. Many points were made, but it is only necessary to an understanding of the decision to state that one was, that the sixteenth section of the act of 1872 had been repealed by the act of 1883. (See acts 1872, p. 462; acts 1882-3, p. 528.)

The injunction was refused, and complainants excepted.

Hook & Montgomery, for plaintiffs in error.

J. S. & W. T. Davidson; Chas. Z. McCord, for defendants.

Hall, Justice.

In Smith et al. vs. Bohler et at, 72 Ga., 546, we determined every question raised and argued in the present case, except the question now made and insisted upon of the repeal of the power of the Board of Education of Richmond county to raise funds to carry on public schools by an assessment of taxes upon the property of the inhabitants of that county, and other property within its limit subject to state and county tax, by the actof September 17th, 1883, entitled "An act to constitute the judge of the city court in the county of Richmond ex officio commissioner of roads and revenues, to define his powers and duties, and for other purposes." This act, it is insisted, by its terms confers on him exclusive jurisdiction over county taxation, and that this school tax was decided by this court in Smith et al. vs. Bohler et al. to be, in its most comprehensive sense, a county tax; that the judge of the city court in Richmond county has over this subject all the power and authority formerly conferred on the inferior court, and after that ceased to exist, then on the ordinary, and subsequently on the commissioners of roads and revenues; that each of these tribunals, in its turn, exercised the power of levying taxes for educational purposes, until in 1872 this power was given to the board of education of that county; that the act of 1883 divested this board of the authority, by implication, and conferred it upon the judge of the city court.

The act establishing that court was approved September 22d, 1881, and by the 41st section thereof, the judge of said court was made ex officio commissioner of roads and revenues of the county, and was charged with all the duties formerly devolved on the justices of the inferior court as to county business. In the case of Whitten-dale vs. Dixon & Brother, 70 Ga., 721, this court expressed a doubt as to the constitutionality of this portion of the act, because of its variance from the title of the act, and because the act itself referred to more than one subject-matter. This suggestion seems to have occasioned the sole necessity for the passage of the act of September 17th, 1883. The preamble recites (acts, 1882-3, p. 528), 1st, these doubts; 2d, that the grand jury, at the April term, 1883, of the superior court, recommended a separate act creating and continuing the judge as commissioner of roads and revenues; and 3d, that his powers and duties as such commissioner should be the same as were "imposed onhim by the city court act, or now exercised by him." It seems that the judge, as commissioner, never exercised, under the city court act of 1881, nor under that which succeeded it, any power over the revenue of the county for educational purposes; that the grand jury never recommended that such power be vested in him; and that now he neither endeavors nor desires to oust the board of education of this jurisdiction, and to assume it himself. In the Central R. R. vs. Hamilton, 71 Ga., 461, we suggested a doubt, if such a thing as a repeal by implication cold exist under that provision of our constitution, which declares that " no law or section of the Code shall be amended or repealed by mere reference to its title, or to the number of the section of the Code, but the amending or repealing act shall distinctly describe the law to be amended or repealed, as well as the alteration to be made." The constitution of 1868 had made this clause only directory to the general assembly; whereas that of 1877 seems to make it mandatory. This alteration in the character of the provision was doubtless made by the convention of 1877, with a view to obstruct, if not to extirpate, evils which had grown up under this discretionary power implied and exercised by the legislature under the directory character of the clause in the constitution of 1868. The doubt suggested in the case of the Central R. R. vs. Hamilton was not the hasty doubt of the member of the court delivering that opinion, as was asserted by counsel in argument; it was entertained by each member of the court,...