State Bd. of Ed. v. Board of Ed. of Richmond County

• Decision Date: 21 June 1940
• Docket Number: 13361.
• Citation: 10 S.E.2d 369,190 Ga. 588
• Parties: STATE BOARD OF EDUCATION et al. v. COUNTY BOARD OF EDUCATION OF RICHMOND COUNTY.
• Court: Georgia Supreme Court

10 S.E.2d 369

190 Ga. 588

STATE BOARD OF EDUCATION et al. v. COUNTY BOARD OF EDUCATION OF RICHMOND COUNTY.

No. 13361.

Supreme Court of Georgia

June 21, 1940

Rehearing Denied July 13, 1940.

Syllabus by the Court.

1. Section 20 of the act of 1872, Laws 1872, p. 462 establishing the Richmond County Board of Education which provided 'That no general law upon the subject of education, now in force in this State, or hereafter to be enacted by its General Assembly, shall be so construed as to interfere with, diminish, or supersede, the rights, powers and privileges conferred upon the Board of Education of Richmond County by this act, unless it shall be so expressly provided by designating the said county and board under their respective names,' did not prevent the General Assembly from repealing by implication a part of that act, by the act of 1937, p. 882 et seq., known as the 'equalizing-opportunities act,' as amended by the act of 1939, pp. 408, 409.

2. The amendment of 1939 to the act of 1937 is construed as making the provisions of that act applicable to independent school systems such as the defendant in error, and accordingly as impliedly repealing previous inconsistent special and general laws applicable to such independent school systems.

Ellis G. Arnall, Atty. Gen., and E. J. Clower and Marshall L Allison, Asst. Attys. Gen., for plaintiffs in error.

Isaac S. Peebles, Jr., of Augusta, for defendant in error.

W. K. Miller and F. Frederick Kennedy, both of Augusta, for parties at interest, not parties to record.

EDWARDS Justice.

The County Board of Education of Richmond County brought mandamus proceedings against the State Board of Education and the State superintendent of schools to compel apportionment to petitioner of its share of the State common-school funds on the basis prescribed by law prior to the adoption of what is known as the 'Equalizing Opportunities Act of 1937,' Ga.L.1937, p. 882 et seq., amended by the acts of 1939, Ga.L.1939, [190 Ga. 589] pp. 408, 409. The defendants filed a general demurrer and an answer. No issues of fact being raised, the judge, after a hearing, overruled the general demurrer and granted a mandamus absolute, requiring the defendants to pay to the petitioner 'its part of the common-school fund upon the basis of the law as it existed before the act of 1937.' To this judgment the defendants excepted.

1. The question at issue is whether the act of 1937, as amended in 1939, applies to the defendant in error, as to the distribution of State school funds, or the law that existed before the passage of said act of 1937, which provided for distribution and apportionment upon the basis of its school population between the ages of six and eighteen years as compared to that of the State. In section 20 of the act creating the Board of Education of Richmond County (Ga.L.1872, pp. 456, 462), it was provided 'That no general law upon the subject of education, now in force in this State, or hereafter to be enacted by its General Assembly, shall be so construed as to interfere with, diminish or supersede the rights, powers and privileges conferred upon the board of education of Richmond county by this act, unless it shall be so expressly provided by designating the said county and board under their respective names.' It is urged by counsel for defendant in error that the failure of the General Assembly to make special reference to the act creating defendant in error in either the act of 1937 or the 1939 amendment thereto, as provided for in section 20, rendered nugatory any attempt to amend that act, and that accordingly the defendant in error is entitled to an apportionment of State school funds in accordance with the provisions of the act creating it and the general law of 1872 (Ga.L.1872, p. 64), and not as provided in the act of 1937.

'The legislative power of the State shall be vested in a General Assembly which shall consist of a Senate and House of Representatives.' Art. 3, sec. 1, par. 1, of the constitution (Code, § 2-1201). 'The General Assembly shall have power to make all laws and ordinances consistent with this Constitution, and not repugnant to the Constitution of the United States, which they shall deem necessary and proper for the welfare of the State.' Art. 3, sec. 7, par. 22 of the constitution (Code, § 2-1822). Comprehended in this broad power to 'make all laws' is of course the power to change or modify existing laws. A law enacted by one General Assemply is subject to repeal or modification by the same or a subsequent General Assembly. Since courts are required to construe laws enacted by the General Assembly (art. 6, sec. 1, par. 1; art. 1, sec. 1, par. 23, Code, §§ 2-2901, 2-123), and these laws are enforced as thus construed the provisions of section 20 of the act of 1872 establishing the Richmond County Board of Education, above quoted, is but an attempt to provide that the General Assembly of the same or of any future years shall have no power to impair the act of 1872 except and unless they do so in the manner therein pointed out, i. e., expressly.

In art. 3, sec. 7, par. 17, of the constitution of 1877 (Code. § 2-1817) it was provided 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.' While for a time some doubt existed whether in view of this provision the General Assembly had the power to work an implied repeal of an existing law (Central R. R. v. Hamilton, 71 Ga. 461; Montgomery v. Board, 74 Ga. 41, 42, 44), it was finally settled in Peed v. McCrary, 94 Ga. 487, 21 S.E. 232, that this power (not being denied) did exist. In Swift v. Van Dyke, 98 Ga. 725, 26 S.E. 59, it was observed: 'This court, in the past, has more than once intimated a doubt as to whether, under the constitution of 1877, repeals by implication existed at all in this State. We are aware that such repeals are not favored, but, after most deliberate reflection, have been unable to bring ourselves to the conclusion that the constitutional convention ever intended to make it impossible, by any sort of legislation, to alter or repeal an existing law without fully describing it. We cannot believe that the framers of our organic law desired or intended thus to hamper legislation. To hold that they did would result in the most serious embarrassment, and place almost insurmountable obstacles in the way of wise and beneficial legislation.' It will be instantly seen that by section 20 of the act of 1872 the General Assembly, in so far as that particular act is concerned, attempted to do what the constitution of 1877 or any previous constitution had not done generally; that is, it attempted to provide in effect that there could be no implied repeal of that act. This it had had no authority to do. In Walker v. McNelly, 121 Ga. 114, 48 S.E. 718, 720, it was said: 'One Legislature cannot lawfully provide that, whenever a subsequent Legislature enacts a statute with reference to a given subject, such statute shall embrace certain specified provisions. It cannot tie the hands of its successors, or impose upon them condition, with reference to subjects upon which they have equal power to legislate.' In 12 C.J. 806, the following statement is found: 'The power to amend and repeal legislation, as well as to enact it, is also vested in the legislature, and a legislature cannot restrict or limit its rights to exercise this power by prescribing modes of procedure for the repeal or amendment of statutes; nor may one legislature restrict or limit the powers of its successors. * * * A legislature may prescribe rules for the construction of statutes that may be applied to statutes thereafter enacted, in the absence of a different intent expressed therein; but if a different intent appears in the subsequent statute, effect must be given to that intent, notwithstanding the statutory rule.' See further, in this connection, Mongeon v. People, 55 N.Y. 613, 618; State v. Hicks, 48 Ark. 515, 3 S.W. 524; Mix v. Illinois Central R. Co., 116 Ill. 502, 6 N.E. 42; Hamrick v. Rouse, 17 Ga. 56; Shaw v. Macon, 21 Ga. 280; Daly v. Harris, 33 Ga.Supp. 38, 39(2); Aven v. Steiner Cancer Hospital, Inc., 189 Ga. 126, 5 S.E.2d 356.

It is pointed out, however, that art. 8, sec. 5, par. 1, of the constitution (Code, § 2-7001) provided that 'Existing local school-systems shall not be affected by this constitution,' and it is contended that section 20 of the act, creating defendant in error as a local school system, was thereby approved by the constitution, and that this operated to make it binding on the General Assembly of future years. The above provision of the constitution did not have the effect of making the act of 1872 creating the defendant in error a part of the constitution (Board of Public Education and Orphanage for Bibb County v. State Board of Education, Ga.Sup., 10 S.E.2d 365), and we cannot agree that this provision of the constitution had the effect of breathing life into section 20 of the act of 1872. Section 20 was only an incidental provision of the act of 1872 and had no direct reference to the establishment of the defendant in error, its powers and duties. The defendant in error as an existing independent school system is not impaired by the constitution of 1877, though section 20 be declared beyond the power of the General Assembly. Therefore, regardless of special provision as to the manner of amendment any subsequent legislature had full power and authority to amend or repeal said special act either expressly, or by implication.

2. Repeals by implication are not favored, and result only...