The Bd. Of Pub. Educ. For The City Of Americus v. Barlow

• Decision Date: 31 July 1873
• Citation: 49 Ga. 232
• Parties: THE BOARD OF PUBLIC EDUCATION FOR THE CITY OF AMERICUS et al., plaintiffs in err0r. v. WILLIAM W. BARLOW et al., defendants in error.
• Court: Georgia Supreme Court

49 Ga. 232

THE BOARD OF PUBLIC EDUCATION FOR THE CITY OF AMERICUS et al., plaintiffs in err0r. v. WILLIAM W. BARLOW et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1873.)

[COPYRIGHT MATERIAL OMITTED]

Constitutional law. Laws. Education. Taxes. Before Judge Hill. Sumter County. At Chambers. June 28th, 1873.

William Barlow and other tax payers of the city of Americus filed their bill against the Board of Public Education for the City of Americus and the Mayor and City Council of said city, making substantially the following case:

On February 13th, 1873, James M. Clark, the present Judge of the Superior Courts of the Southwestern Circuit, embracing the county of Sumter, Hiram L. French, the Mayor of said city of Americus, and others, were constituted by an Act of the General Assembly of the State of Georgia a permanent *Board of Public Education for said city.

By the provisions of said Act, said board, or a majority of them, were fully authorized to devise, establish and alter, from time to time, a plan and system of education for the children in said city, to superintend the same, to provide school houses, etc., and to make by-laws, rules and regulations, etc., for their own government. By the 3d section of said Act, full power and authority was granted to them to require the Mayor and City Council of Americus to levy a tax of one per cent. or less, upon all the taxable property of said city. Said Act pretended further to vest in said board, to an unlimited extent, the right to raise money by issuing bonds, or in any other manner except by directtaxation. By the provisions aforesaid, the Mayor and City Counsel are left without discretion in the levying of said taxes, or in raising the amount of funds which may be required, but are compelled to levy and collect the tax, or to negotiate the bonds, as may be required of them by the said board of education. The board have fully organized, and propose to levy a tax of one per cent. upon the taxable property of said city, and to require the collection of the same by the Mayor and City Council, and otherwise, by negotiating bonds and using the credit of said city, to raise a sufficient sum of money to build the school houses and to commence operations under said Act.

Complainants charge that said board have no authority under the Constitution of the State to make said assessment and to require said money from the tax payers, nor have the Mayor and City Council any right to collect the same for any such purpose. The Constitution protects the property of the citizen from all taxation for educational purposes, except to provide a system of general education embracing the whole State; nor can property be taxed for such purpose except upon the inadequacy of the special appropriations, and in that case the General Assembly alone can levy a general tax. The State cannot levy a general tax to support a common school system, until it shall appear that the poll tax, the specific tax on shows and exhibitions, and on the sale of spirituous *liquors, are insufficient for the purpose; nor can the General Assembly delegate this power to a corporation, nor to school commissioners, the same being reserved alone to the Legislature, as above stated.

If this tax is allowed, complainants will be double taxed, for they will be compelled also to contribute to the support of the common school system of the State.

Prayer, that the Board of Public Education be restrained by the writ of injunction from proceeding any further in requiring the Mayor and City Council to raise money for the purposes aforesaid, by taxation or otherwise, until the further order of the Court. That the writ of prohibition may issue directed to the Mayor and City Council of Americus, prohibiting them, upon any requisition of said Board of Public Education, from negotiating the bonds of said city, or from otherwise raising any money on said school enterprise, or from levying a tax on the property of complainants. That the writ of subpoena may issue, etc.

The defendants, the Board of Public Education, and the Mayor and City Council of Americus, filed a joint answer in which they admitted most of the allegations in the bill. They denied that complainants had no notice of the contemplated passage of said Act, and showed that a public meeting had been called through a newspaper published in said city of the friends of education, and that, after a considerable debate at such meeting, a committee had been appointed to memorialize the General Assembly upon the subject of a free school system in said city, and that the Act complained of was the result of such action. They further showed that the proceedings of said meeting were duly published, and charged that the complainants must have had notice thereof.

The Board of Public Education admit that they have organized, but deny that they have ever proposed or threatened to levy a tax of one per cent. upon the taxable property of said city, and require the collection of the same by said Mayor and City Council, or that they have ever had beforethem the necessity or propriety of otherwise raising sums of money sufficient *to build the school houses, and to commence operations under the said Act. They further allege that, before any notice of the application for injunction, they passed a resolution requiring the Mayor and City Council to levy a tax of one-half of one per cent. upon the taxable property of said city, for the purpose of carrying on said schools. They do not now contemplate building school houses, but deem it best to rent such buildings as are suitable to the establishment of the public graded schools. They believe that such tax, together with such amounts as will be received from the State and the Peabody fund, will be sufficient to sustain the necessary schools for the present.

Both defendants refer to said Act as authority for all their acts in the past and contemplated action in the future.

The Honorable James M. Clark, the Chancellor of the Circuit embracing Sumter county, being a member of the Board of Public Education for the city of Americus, the application for the writs of injunction and prohibition, after due notice, came on to be heard before Chancellor Hill, of the Macon Circuit, on June 28th, 1873. He ordered that the writs of injunction and prohibition both issue, as prayed for. To this ruling, the defendants excepted.

C. T. Goode; N. A. Smith, for plaintiffs in error.

W. A. Hawkins, for defendants.

TRIPPE, Judge.

1. The Constitution of the State declares that "the General Assembly * * * shall provide a thorough system of general education, to be forever free to all children of the State, the expense of which shall be provided for by taxation, or otherwise: " Article VI. paragraph 1. The third paragraph of the same Article, after setting apart certain taxes and funds therein specified for the support of common schools, provides further: "And if the provisions hereinmade shall at any time prove insufficient, the General Assembly shall have power to *levy such general tax upon the property of the State as may be necessary for the support of said school system." The 27th and 28th paragraphs of Article I. are as follows: "The power of taxation over the whole State shall be exercised by the General Assembly only to raise revenue for the support of goverment, to pay the public debt, to provide a general school fund, for common defense, and for public improvement; and taxation on property shall be ad valorem only, and uniform on all species of property taxed. The General Assembly may grant the power of taxation to the county authorities and municipal corporations, to be exercised within their several territorial limits." The argument against the power of the Legislature to confer authority on counties and municipal corporations to levy taxes...