Wheeler v. Board of Trustees of Fargo Consol. School Dist.

• Decision Date: 20 February 1946
• Docket Number: 15393,15394.
• Citation: 37 S.E.2d 322,200 Ga. 323
• Parties: WHEELER v. BOARD OF TRUSTEES OF FARGO CONSOL. SCHOOL DIST. et al. BOARD OF TRUSTEES OF FARGO CONSOL. SCHOOL DIST. et al. v. WHEELER.
• Court: Georgia Supreme Court

37 S.E.2d 322

200 Ga. 323

WHEELER v. BOARD OF TRUSTEES OF FARGO CONSOL. SCHOOL DIST. et al.

BOARD OF TRUSTEES OF FARGO CONSOL. SCHOOL DIST. et al. v. WHEELER.

Nos. 15393, 15394.

Supreme Court of Georgia

February 20, 1946

Rehearing Denied March 5, 1946.

Syllabus by the Court.

1. When all Justices of this Court are disqualified, and all superior court judges are likewise disqualified, the Justices of this Court must hear and decide a controversy notwithstanding their disqualification. This is true for the reason that no legally qualified court can be constituted.

2. The instrument contained in Ga.L.1945, pp. 8 to 89 inclusive, is not an amendment to the constitution of 1877, but is a completely revised or new constitution.

3. The instrument referred to in headnote 2 is a valid new constitution for the State of Georgia.

4. The constitution of 1945 does not abolish local school districts or local school trustees; neither does it charge or alter the statutory law with reference to local school bonds.

W. E. Wheeler filed suit against the Board of Trustees of Fargo Consolidated School District, the Board of Education of Clinch County, the Commissioners of Roads and Revenues of Clinch County, and A. G. Gibbs, tax collector of Clinch County, in which he sought to enjoin the board of trustees and the board of education from selling, issuing, and delivering Fargo consolidated school district bonds, and to enjoin the commissioners of roads and revenues from levying the tax to service the bond issue, and A. G. Gibbs, tax collector, from collecting such tax for said purpose.

The petition alleged in substance that prior to August 13, 1945, Fargo school district was a legally created and existing local school district situated in Clinch County; that on July 25, 1945, in accordance with the Code, § 32-1401, an election was held for the purpose of determining whether or not school bonds in the amount of $27,500 should be issued, and the election was in favor of the issuance of said bonds; and in due course, to wit, on August 7, 1945, the bonds were validated and confirmed as provided by law; that on August 13, 1945, an amendment to the constitution of 1877 was proclaimed effective by the Governor of the State, and after this date the board of trustees of said school district recommended to the commissioners of roads and revenues the levy of a tax to service the bond issue; that the commissioners made such levy and the tax collector of Clinch County would pursuant thereto collect the tax for said purpose unless enjoined; that the school district was in the process of selling, issuing, and delivering the school bonds and would do so unless enjoined; that the bonds could not now be issued by the school district or the Clinch County board of education, or any tax levy be made or collected, for various reasons urged in the petition (hereinafter in the opinion stated); that, if the bonds be allowed to be sold and delivered, and a tax levy made and collected, the damage to the plaintiff and other taxpayers and citizens in Clinch County would be impossible of ascertainment and irreparable; and injunctive relief was sought before any injury or damage could result to any one.

To this petition each of the defendants demurred generally, the body of the demurrer being as follows: '1. The petition sets forth no cause of action against any of the defendants. 2. The allegations of fact set forth in the petition, taken as true, do not authorize the relief sought. 3. The allegations of fact set forth in the petition authorize and demand the conclusion that the bonds therein referred to are legal and valid in all respects, and no cause is shown why any of the defendants should be enjoined as prayed. 4. The allegations of the petition show that the bonds in question are legal and valid, when considered with respect to the constitutional and statutory requirements governing such bond issues, as the same were under the provisions of the constitution of 1877 and the statutes pertaining thereto. The constitution of 1877 and the laws of force on, prior to, and since August 13, 1945, being the date when the so-called new constitution of the State of Georgia was proclaimed as having been adopted and as effective, are the constitutional provisions and statutes of force which govern and control, and by which the legality and validity of the bonds in question are to be determined, for that, the so-called new constitution is void and of no effect, because the same was submitted to the voters of the State of Georgia for ratification or rejection in the general election in August, 1945, as one single amendment, Ga.L.1945, pp. 8 to 89, inc., of which fact the court will take judicial cognizance, whereas, in truth and in fact, the resolution proposing the adoption of the said so-called new constitution, as does clearly appear from the resolution itself, consists of numerous amendments of separate, distinct, and unrelated subject-matters, all in violation of that provision of the constitution of 1877, constituting a part of section 2-8601 of the Code of Georgia of 1933, Const. art. 13, § 1, par. 1, as follows: 'When more than one amendment is submitted at the same time they shall be so submitted as to enable the electors to vote on each amendment separately,' the result being that the attempt to revise the constitution of 1877 by the adoption of one amendment, containing separate, distinct, and unrelated subject-matters, was and is abortive and of no effect, because in conflict with and contrary to the quoted provisions of the constitution of 1877. 5. The allegations of plaintiff's petition, taken as a whole, constitute a collateral attack upon the judgment of Clinch superior court upon the validation of said bonds entered on the 7th day of August, 1945. The petitioner is bound by said judgment and will not be heard to attack it otherwise than in a timely proceeding brought for that purpose, and then only for reasons which could not have been urged before the judgment of validation was entered.'

The trial court sustained the general demurrer on all grounds except one, and dismissed the plaintiff's petition, entering the following order: 'The above-stated case having come on regularly for hearing before me this day pursuant to an order of the court heretofore entered, and defendants having presented and urged the within and foregoing general demurrer to the petition, after argument of counsel and upon consideration of the facts shown by the petition and of the grounds of demurrer, it is adjudged and ordered as follows: 1. The constitution of Georgia ratified by the people in the general election in August, 1945, and duly proclaimed by the Governor on August 13, 1945, was properly and legally submitted to the voters of the State as one single amendment to the constitution of 1877, and at all times since August 13, 1945, has been and is now of full force and virtue as the constitution of this State. 2. The Fargo consolidated school district bonds voted and validated as set forth in plaintiff's petition are legal and valid, and no cause is shown why the same may not be issued, sold, and delivered and the proceeds applied for the purposes intended. 3. Ground 4 of the defendant's demurrer to the petition is overruled and denied. 4. Grounds 1, 2, 3, and 5 of the demurrer are sustained and the petition is dismissed.'

The plaintiff in error excepts to the judgment in so far as the demurrer was sustained. The defendants in error by cross-bill except to the portion of the judgment that overruled ground 4 of the demurrer.

Downing Musgrove, of Homerville, Sumter M. Kelley and Spalding, Sibley & Troutman, all of Atlanta, R. A. McGraw, Asst. Atty. Gen., and Eugene Cook, Atty. Gen., for plaintiff in error.

J. B. Copeland, of Valdosta, and Sam M. Mathews, of Fort Valley, for defendant in error.

WYATT Justice.

1. The first question with which we must deal is whether or not the Justices of this court are disqualified. The instrument voted upon August 7, 1945, and put into effect by the proclamation of the Governor on August 13, 1945, raised the salaries of the Justices of this court from $7,000 to $8,000 per annum. All Justices, therefore, have a direct pecuniary interest in the outcome of this litigation. The Code, *s 24-102, provides, among other things, that no judge or justice of any court shall sit in any cause or proceeding in which he is pecuniarily interested. In necessarily follows that every member of this court is disqualified.

The next question is how the place of a disqualified Justice can be filled. Both the instrument voted upon August 7, 1945, and the constitution of 1877 as amended (see Ga.L. 1937, p. 33) provide that superior court judges shall be designated to preside on the Supreme Court in the place of disqualified Justices of the Supreme Court. There is no authority under our law for the designation of any one to preside in the place of a disqualified Supreme Court Justice other than a superior court judge. The same instrument raising the Supreme Court Justices' salaries from $7,000 to $8,000 per annum, also raised the salaries of all superior court judges from $5,000 to $6,000 per annum.

We are confronted with this situation: All Supreme Court Justices are disqualified; all superior court judges are likewise disqualified. Hence, it is impossible, under the law, to obtain a court with a qualified membership to pass upon this case. The precise question we must now determine is, when all Justices of this court are disqualified, and all superior court judges are likewise disqualified, thereby resulting in a situation where no qualified court can be constituted, what shall be done? The rule is laid down in 30 Am.Jur. 770, § 55; 'By the great...