Stewart v. Davidson

• Decision Date: 04 April 1963
• Docket Number: No. 21890,21890
• Citation: 218 Ga. 760,130 S.E.2d 822
• Parties: Henry STEWART, Member of State Board of Education, et al. v. Charles L. DAVIDSON, Sr., Member of DeKalb County Board of Education, et al.
• Court: Georgia Supreme Court

Page 822

130 S.E.2d 822

218 Ga. 760

Henry STEWART, Member of State Board of Education, et al. v. Charles L. DAVIDSON, Sr., Member of DeKalb County Board of Education, et al.

No. 21890.

Supreme Court of Georgia.

April 4, 1963.

Syllabus by the Court

1. The members of a county or independent school district board of education have a duty to collect all funds belonging to their respective schools, and if necessary they can maintain mandamus proceedings against the members of the State Board of Education and the State School Superintendent to compel them to pay the amounts due the board under the Education--Minimum Foundation Program Act (Ga.L.1949, p. 1406).

2. The Minimum Foundation Program Act is a general law, hence it must conform to the constitutional requirement of uniform operation throughout the State. Code Ann. § 2-401 (Const. of 1945, art. 1, § 4, par. 1). The clause in Section 13(c) of said act, which combines the economic index of Fulton and DeKalb Counties so long as the independent Atlants school system exists in each county, is not uniform and would, if allowed to stand, destroy the uniformity of the act. It therefore offends the Constitution (Code Ann. § 2-401), and is void. With the elimination of this malignant appendage, the remainder of the act is constitutional and valid.

Five named persons in their official capacities as members of the DeKalb County Board of Education and five other named persons in their official capacities as members of the City of Decatur Board of Education brought their petition against named persons in their official capacities as members of the Georgia State Board of Education and against Claude Purcell in his official capacity as Georgia State Superintendent of Schools, praying for mandamus absolute against the defendants requiring them pursuant to the Minimum Foundation Program of Education Act, Ga.L.1949, pp. 1406-22 (Code Ann. Ch. 32-6), 'to calculate the local financial abilities of petitioners and to allot to them their lawful portions of the Minimum Foundation Program of Education funds determined according to the provisions of said act without giving effect to the last quoted sentence of Section 13(c) of said act reading as follows: 'In determining the local financial ability of the Counties of Fulton and DeKalb the economic index for the two counties shall be combined so long as the boundaries of the independent school system of Atlanta falls in both Fulton and DeKalb Counties,'' the same being unconstitutional, null and void for stated reasons alleged in the petition.

The prayers were amended to ask that the last sentence of Section 13(c) 'be declared null, void, and of no effect and unconstitutional as contravening and violating' certain provisions of the Constitution of Georgia, to wit: Art. I, Sec. IV Par. I (Code Ann. § 2-401) (uniformity clause); Art. I, Sec. I, Par. II (Code Ann. § 2-102) (protection to person and property should be impartial and complete); Art. III, Sec. VII, Par. XV (Code Ann. § 2-1915) (special law for which notice must be given).

To the petition as amended the defendants filed general demurrers on numerous grounds, all of which were overruled. The case was submitted to the trial judge upon the pleadings, the defendants stipulating that demand had been made by plaintiffs upon defendants that the last sentence of Section 13(c) of the act (Ga.L.1949, pp. 1406, 1415; Code Ann. § 32-615(c)) be ignored in determining the amount due them under the act, that the same calculations used as to the other counties and school systems in the State be used as to them, and that they be allotted their lawful portion of the Minimum Foundation Program of Education funds determined according to the act without giving effect to the last sentence of Section 13(c) of said act. Defendants admitted that funds disbursed to the DeKalb and Decatur Boards of Education for the 1961-62 school year, and those to be disbursed for the 1962-63 school year, were and would be calculated according to the provisions of Section 13(c) and that plaintiffs received less than they would have received had the calculations used as to the other 157 counties been used as to them.

The trial judge thereafter entered judgment declaring the last sentence of Section 13(c) of the act unconstitutional and granting mandamus absolute as prayed. To the sustaining of certain of the demurrers, and to the judgment granting mandamus absolute, the defendants excepted.

Eugene Cook, Atty. Gen., Donald E. Payton, John Harrison, Asst. Attys. Gen., Atlanta, for plaintiff in error.

Murphey Candler, Jr., Thomas O. Davis, Decatur, for defendant in error.

Latimer & Allen, A. C. Latimer, James P. Groton, Sutherland, Asbill & Brennan, Atlanta, for parties at interest not party to record.

DUCKWORTH, Chief Justice.

1. The Constitution, Art. VIII, Sec. V, Par. I (Code Ann. § 2-6801; Const. of 1945), in part provides that 'Authority is granted to counties to establish and maintain public schools within their limits. Each county, exclusive of any independent school system now in existence in a county, shall compose one school district and shall be confined to the control and management of a County Board of Education.' The legislature enacted a law with similar import (Code § 32-901) where it is said: 'Each and every county shall compose one school district, and shall be confided to the control and management of a county board of education.' See also Code Ann. § 32-1101 (Ga.L.1946, p. 206). These laws are exhaustive as to who shall and must control and manage the schools of a county. The boards alone can receive and expend all school funds. The schools are entrusted to them, and them alone. A public office is a public trust. Fulfillment of the trust thus borne by the boards of education requires diligence and good faith not alone in making disbursement but also collection of all funds lawfully available to them. Since they alone have a lawful right to receive such funds, they alone are authorized to invoke legal process to compel payment of all funds due them under the law. To accomplish this they are empowered to maintain mandamus proceedings to require those holding funds belonging to them to pay those funds to the board. Board of Education & Orphanage for Bibb County v. State Board of Education, 186 Ga. 200, 197 S.E. 261; State Board of Education v. Board of Public Education of Savannah, 186 Ga. 783, 199 S.E. 641.

Counsel for the defendants recognize this law and in their brief concede that this mandamus proceeding can be maintained to secure the performance by the defendants of their duty under Ga.L.1949, p. 1406, to pay all funds to which they are entitled under that law, but they challenge the right of the petitioners to attack a portion of that law upon constitutional grounds and thus eliminate it. If the assailed portion of the law is valid, then petitioners can not prevail, but if it is unconstitutional, then they can prevail. The petition alleges and defendants admit, that by applying the clause under attack, DeKalb County will, for the year 1962-1963 lose $388,733, which it would receive if treated as all other counties are treated under the law. Thus is shown a requisite to the right to attack the law. South Georgia Natural Gas Co. v. Georgia Public Service Commission, 214 Ga. 174, 104 S.E.2d 97. If the clause under attack is violative of the Constitution, it is by the Constitution itself, declared void by Code Ann. § 2-402 (Const. of 1945, art. 1, § 4, par. 2). The Supreme Court in Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178, gave a true description of an unconstitutional act as follows: 'An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.' This court quoted this precise language with approval in Holcombe v. Georgia Milk Confederation, 188 Ga. 358, 363, 3 S.E.2d 705. Therefore, it follows that if the clause here assailed is unconstitutional, it is in legal contemplation as inoperative as though 'it had never been passed.' Also, 'it affords no protection' to the defendants in withholding from the petitioners the full amount to which they are entitled under the law with the clause erased therefrom.

It is not a valid argument to contend that since petitioners are public officers of a subordinate unit of the State they can not attack this State law. The only requisite to the right to make the attack is a showing that it is hurtful to the attacker. State Ports Authority v. Arnall, 201 Ga. 713, 41 S.E.2d 246; City of Moultrie v. Moultrie Banking Co., 175 Ga. 738, 165 S.E. 814; Calhoun County v. Early County, 205 Ga. 169, 52 S.E.2d 854; Franklin v. Harper, 205 Ga. 779, 55 S.E.2d 221; State of Georgia v. Blasingame, 212 Ga. 222, 91 S.E.2d 341; Vandiver v. Williams, 218 Ga. 60, 126 S.E.2d 210. It is admitted that this clause hurts petitioners in the combined amount of $388,733 for the school year 1962-63. It is further contended that since for a number of years this clause operated to the benefit of the petitioners and they never complained then, and further that they have accepted the money under the law, since it caused them a loss they are estopped to now challenge its constitutionality. As seen above, when they were not hurt they could not attack it. Their acceptance of money thereunder when it caused them to sustain a loss does not prevent them from now seeking to have it declared void and thereby avoid further loss. Calhoun County v. Early County, 205 Ga. 169(2), 52 S.E.2d 854, supra.

Finally, counsel for parties at interest contend that if the clause of the act under attack is held unconstitutional, then the entire act must fail. When the act is examined, it is seen that it expressly declares the public policy of this State. It deals with every school district in the State. It provides for...