Smithet A1 v. Bohler

• Decision Date: 28 February 1884
• Citation: 72 Ga. 546
• Parties: Smithet a1. vs. Bohler et al.
• Court: Georgia Supreme Court

72 Ga. 546

Smithet a1. vs. Bohler et al.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1884.

Constitutional Law. Education. Richmond County. Tax. Bonds. Practice in Superior Court. Before Judge Pottle. Richmond County. At Chambers. January 19, 1884.

This was a bill filed by certain citizens of Richmond county, alleging themselves to be tax payers, against the tax collector, sheriff, and board of education of Richmond county, to enjoin the collection of the school tax levied by the board for the year 1883.

Complainants made the following points:

(1.) That the act of 1872, organizing the board, is unconstitutional, because it contains two subject-matters, and contains matter not expressed in the title thereof.

(2.) Because the tax authorized to be levied is a personal or poll tax, and is obnoxious to article 7, section 2, paragraph 13, of the constitution of 1877.

(3.) Because the mode pointed out for levying the tax under the act of 1872, if constitutional, was not followed— complainants holding that the school commissioner should have himself taken the return and value of the property of each citizen, and upon such valuation assessed the school tax; the fact being that the school commissioner adopted the tax return made to the state and county tax receiver for state and county taxes, and upon this valuation assessed the tax levied by the board for educational purposes.

(4.) Because the tax levied is not to provide for the expenses of a thorough system of common schools for "instruction in the elementary branches of an English education only, " but is to be used for the purchase of school houses, sites, etc.

(5.) Because the tax levied is excessive.

(6.) Because the board was illegally organized, in that certain members were not free-holders and had been illegally elected, and without the vote of such members, the two-thirds vote required under the act to levy the school tax had not been had.

(7.) Because the tax collector had no authority to issue execution for the school tax, and was without bond to collect the same.

(8.) Complainants contended in argument that the general assembly, under the constitution of 1868, had no authority to grant the power of taxation to said board.

The board alone demurred to parts of the bill, and answered, insisting on the constitutionality of the act of 1872, and upon the regularity and legality of its proceedings thereunder,

On the hearing, the bill, demurrer, answer and evidence were heard. From the evidence, the following may be abstracted as sufficient to elucidate the points decided: In 18S2, the taxable property in the county, as shown on the digest, was $17,9S9, 050; in 1883 it was $19,593, 210. In 1882, the school tax was two mills on the dollar, and in 1883, two and 3.10 mills on the dollar, while the state and county tax was two and 5.10 mills each on the dollar. In 1882, the entire state and county tax was seventy-five cents on the $100.00; in 1883, it was seventy-three cents on the $100.00. $40,000.00 was to be raised by this levy of school tax, and $10,000.00 devoted to the purchase of sites, buddings, etc., through the local trustees and officials. It was also urged by complainants that, while the tax was nominally to produce $40,000.00, yet a levy of two and 3 10 mills on the property in the county digest would produce 645, 064.3S, besides other sources of income, so that the total income would be as follows: From local tax. $43,064.38; from state fund, $6,144.94; from former levies, from $2,000.00 to $3,000.00, say $2,500.00; from high school fees, $1,704.00; non-resident fees, $128.00; poll tax, $1,699.00; total, $57,240.32; and if the sum of $10,165.38, on hand January 1, 1883, is added, the total will be $67,405.70.

At a quarterly meeting of the board of education, held on July 14, 1883, resolutions were offered that a school tax of two and 3-10 mills be levied, and that the countycommissioner make out an assessment and return, and furnish a copy to the county tax collector. These resolutions failed for want of a proper majority. The minutes call this session a secret session, but there was some evidence tending to show that a suggestion was made that the board go into secret session; that the chairman thereupon requested the reporters to retire, and that others remained. This meeting was adjourned until July 21, when the resolutions were again put and carried. No motion for reconsideration of the former action was made.

On about August 25, 1883, after the county receiver's digest had been filed with the collector for the collection of the state and county taxes, the school commissioner went to the tax collector's office and made the following entry on the blank page in front of the digest:

"State of Georgia, Richmond county.—I hereby certify that the within and following is a true copy of the assessment and return against all the legal tax payers of Richmond county, Georgia, of the tax for public school purposes for the year 1883, made by me in pursuance of law and resolution of the board of education—the total assessment being if 19, 593, 210, and the tax upon the same two and three-tenth mills on every dollar of properly. Witness my hand and seal of said Richmond county board of education, this the twenty-fifth day of August, 1883. (Signed) L. B Evans, Secretary of the Board of Education and County Commissioner."

At the same time, the commissioner handed to the tax

collector a paper, of which the following is a copy:

"Augusta, Georgia, August 27, 1883—John A Bohler, Tax Collector Richmond county, Georgia: I hereby certify at a meeting of the Richmond county board of education, legally held on the twenty-first (21st) day of July, 1883, it was voted, in accordance with the law, two-thirds of the members concurring therein, that the sum of forty thousand ($40,000) dollars be raised in said county of Richmond for public school purposes for the year 1883, and that a tax sufficient to realize the same be levied, the said tax being two and three-tenth mills on every dollar of taxable property of the legal taxpayers of the county. In obedience to the order of said board, and in pursuance of law, I do hereby assess and return a tax against all the legal tax payers in the county of two and three-tenth mills upon every dollar of taxable propery held by legal tax payers in said county, in pursuance of the law entitled 'An act to regulate public instructionin the county of Richmond, \' approved August 23, 1872. And i hereby place in your hands a copy of my assessment and return of 6aid tax against all the legal tax payers in said county of Richmond, made out in pursuance of law. You are hereby directed to collect said tax and deposit it to the credit of the Richmond county board of education, in such bank in the city of Augusta as may be designated by the state commissioner for the deposit of the county school fund. In witness whereof I have hereunto set my official hand and affixed the seal of said board, this 27th day of August, 1883.

(Signed): Lawton B. Evans, Secretary Board of Education and County School Commissioner. [Seal.]"

A like certificate was placed at the end of the copy digest in the ordinary's office as in that of the tax collectors. There was no entry on the tax digest in reference to a levy of tax by the board of education, until the one above stated, and the tax receiver testified that, in making up the digest, he did so without reference to the assessment of a school tax. After this entry and notice by the school commissioner, the tax collector made a pencil memorandum opposite the name of each person of the sum which two and.3-10 mills would make upon the property owned by each, and when the tax was paid, with the state and county tax, the collector carried the amount, in ink, to the total or paid column.

Several members of the board of education returned no property for taxation, and seven members who voted for the tax imposed were elected by the board to fill vacancies caused by failure to hold an election at the expiration of the terms of former incumbents.

Defendants introduced evidence to the effect that the school system was the same as operated prior to the adoption of the constitution of 1877, and the increase in cost was due to increase in the number of children in attendance and the necessity of preparing for their accommodation. The tax collector and city judge testify that the margin of $5,004.38 on a tax levy to produce $40,000, was a just and proper allowance to cover insolvents, errors in digest, and collector's commissions. The tax collector further said: " That the entire amount the board can ex-pect to receive from former tax levies will not exceed two thousand to three thousand dollars; that all unpaid taxes on said lovies are in execution, and deponent believes a large part of the same are held back under affidavit of illegality." Each of the members of the board who voted to levy this tax had taken the oath of office before the ordinary, and received from him a commission signed by the governor.

Other points were made, to the effect that the funds were not to be used for elementary or common school education alone, but in schools in which a higher curriculum was adopted, the purchase of sites for schools other than high schools, etc., but these are not material to an understanding of the decision.

The chancellor filed a written decision, reviewing the case and refusing an injunction. Complainants excepted and made twenty five assignments of error, the material points of which may be seen from the facts stated above. One assignment was as follows:

Because the court erred in inserting in his decision, as follows: " Prior to the late war we had no educational system, except one which degraded the children of the poor. A convulsion came. The fountains of the great deep of our civilization were broken up, millions of estates and securities were swept away, and at its close the children of the rich were leveled with the...