Vaughn v. Simmons
| Decision Date | 14 January 1913 |
| Citation | 76 S.E. 1004,139 Ga. 210 |
| Parties | VAUGHN v. SIMMONS et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The act of August 16, 1909 (Acts 1909, p. 1183), as amended by the act of August 13, 1910 (Acts 1910, p. 953), described a considerable rural territory in Pulaski county, declared it to be incorporated as "the town of Mitchell's District," and conferred on a board of school trustees power to establish and maintain a system of public schools therein in a manner different from that provided by the general school laws, but prescribed no municipal duties or powers other than the maintenance of such schools, save in the general statement that the corporation should be styled by the name stated, "with all the powers, duties, and privileges usual to municipal corporations." Jurisdiction over roads was negatived, and no power of taxation was given except to the trustees for school purposes. Held, that such act, as amended, was unconstitutional, as seeking to create a special school district, where provision had been made for the creation of such districts by general law.
Such an act as that above described did not come within the provision of the Constitution which declares that authority may be granted by the Legislature to municipal corporations "upon the recommendation of the corporate authority, to establish and maintain public schools, in their respective limits by local taxation;" and this is true, though the act provided for a submission to the voters of the district of the question whether they would ratify or refuse to "ratify the act."
(a) Under the preceding rule, it is unnecessary to decide whether the clause of the Constitution just quoted authorized the creation of a municipal corporation and the conferring by the act creating it of power to establish public schools, subject to an election, or whether the words "upon the recommendation of the corporate authority" contemplated an existing corporate authority to make such recommendation before the power to establish schools was granted.
Where an execution for a school tax under such an act was levied by a constable, an equitable petition praying that the constable be enjoined from enforcing the execution, and that the defendants, other than the constable, be enjoined from exercising any powers under the act, was not subject to dismissal on demurrer, on the ground that it made the persons claiming to act as school trustees defendants in their individual, and not their official, capacities.
Error from Superior Court, Pulaski County; J. H. Martin, Judge.
Suit by Freeman Vaughn against J. J. Simmons and others. From a judgment of dismissal, plaintiff brings error. Reversed.
Freeman Vaughn filed an equitable petition on behalf of himself and such others as might join with him, alleging, in substance as follows: He is a resident of that portion of the territory of Pulaski county known as the town of Mitchell's District, and is a taxpayer therein. On August 16, 1909, an act was passed to incorporate such district. Acts 1909, p 1183 et seq. This was amended in minor particulars by the act of August 13, 1910 (Acts 1910, p. 953). Prior to the act of 1909 there existed and was conducted, under the general school laws of the state, a school known as the Midway school, which had acquired a considerable amount of real and personal property, and had contracted debts aggregating about $400, which indebtedness was a charge on the property of such school. After the passage and ratification of the above-mentioned act, the trustees of the public school system organized under it acquired and took over all of the property of the Midway school, and assumed the liabilities thereof. In the act no authority was given to raise taxes for any other purpose than to defray the expenses of the school system for the scholastic year. The school authorities borrowed about $500 for the pretended purpose of using it for the maintenance of the school system, but, in fact, did so in order to discharge the indebtedness, and have included in the amount of money to be raised by taxation a sufficient sum to pay off the unlawful debt. Execution has been issued against the plaintiff by the school authorities, and it has been levied by Jennings, a constable of the county, upon certain property of the plaintiff, and a sale has been advertised. The act of 1909, as amended by that of 1910, is unconstitutional. Various grounds of unconstitutionality were alleged, among them being that the act was violative of article 1, § 4, par. 1, of the Constitution, and also of article 8, § 4, par. 1. The persons who were alleged to be acting as trustees of the school system of the town of Mitchell's District, the ex officio mayor and aldermen and the constable who made the levy were made parties defendant. It was stated that the defendants, other than the constable, were acting without authority in any of their acts and doings set forth, "and that said suit is brought against them not in their official capacity, but solely in their individual capacity." The prayers were that the constable be enjoined from proceeding to enforce the execution against the property of the plaintiff, that the other defendants be enjoined from further exercising any power under the acts above mentioned, and for process and general relief. The act of 1909 (Acts 1909, p. 1183) contained 27 sections, covering about 11 pages of the published acts. The first section declared that the town of Mitchell's District was incorporated; the limits being defined by reference to various land lots, the county line and the Ocmulgee river. The sole reference in the entire act to any municipal powers or duties, other than the government of the school system, was contained in the second section, as follows: "That the governing authority of said town shall be vested in the mayor and six aldermen, who shall be bona fide citizens, residents of the said town for the full term of six months next preceding their election to office, and said municipal government shall be styled the town of Mitchell's District, and by that name are hereby made a body corporate with all the powers, duties and privileges usual to municipal corporations." Section 3 declared that, until an election for mayor and aldermen should be held, a named person should be mayor, certain other named persons should be aldermen, and another person should act as clerk and treasurer of the town. Section 4 declared that there should be established and maintained in said town a system of public schools, the management of which should be vested in a board of trustees, and that, until their successors were elected and qualified, the board should be composed of certain named persons, the same who had been previously named to act as mayor and aldermen, and with the same person as secretary and treasurer who had previously been named as clerk and treasurer. Section 5 provided for an election for trustees of the school on a fixed date and periodically thereafter, with power to elect one of their number president, and one secretary and treasurer. Section 6 declared that, after the first election, the board of trustees so elected should be ex officio aldermen of the town, except that the president of the board of trustees should be ex officio mayor, and the secretary and treasurer of the board should be ex officio clerk and treasurer; "the object of this provision being that after the first election held under this act it will not be necessary to elect mayor and aldermen eo nomine, but that the members and officers of the board of trustees for the time being shall exercise the rights and duties of the mayor, aldermen, and clerk and treasurer of said town." By section 7 it was declared that any vacancies on the board of trustees or in the offices thereof should be filled by the board for the unexpired terms. The act then proceeded to deal with the regulation of the schools, the powers of the trustees in regard to them, the terms, the admission of pupils, the number of schools for white and colored children, the right to receive the share of the school fund "of the county and state" to which the schools thus established were entitled, and other matters of school regulation. The school board was authorized and required to levy a school tax not exceeding a stated per cent. The secretary and treasurer of the board was to assess the valuation of the property "within the said district for taxation," to collect such tax, and issue executions against defaulters. After advertisement by putting up notices at three public places, personal property was to be sold "before the schoolhouse door established for white children in said town." Real estate was to be sold by the sheriff. The taxes when collected were to be delivered to the secretary and treasurer of the board of trustees, and expended only upon order of the board in defraying the expenses of conducting the schools. Section 22 provided for the holding of an election "for the purpose of ratifying or refusing to ratify this act." Section 24 declared that, immediately after the ratification of the act, "all officials of said town shall take the following oath: 'I, --, do swear that I will faithfully discharge the duties...
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