Wrightsville Consol. School Dist. v. Selig Co.

• Decision Date: 11 February 1943
• Docket Number: 14397.
• Citation: 24 S.E.2d 306,195 Ga. 408
• Parties: WRIGHTSVILLE CONSOLIDATED SCHOOL DIST. et al. v. SELIG CO.
• Court: Georgia Supreme Court

24 S.E.2d 306

195 Ga. 408

WRIGHTSVILLE CONSOLIDATED SCHOOL DIST. et al. v. SELIG CO.

No. 14397.

Supreme Court of Georgia

February 11, 1943

Syllabus by the Court.

1. The writ of mandamus is available to require a public officer to perform acts and duties imposed upon such officer by law. Code, § 64-101. When it is sought as here by mandamus proceedings to require school officials to levy a district-school tax, it is essential that the petition show that the district is one in which a local tax may lawfully be levied and collected, and also that the claim of the petitioner for the payment of which the tax levy is sought is one which the law authorizes such tax levy to be made for its payment. The present petition, containing neither of these essential averments, was subject to general demurrer; and there being no evidence to show these essential requirements, the court erred in overruling the general demurrer and granting mandamus absolute.

2. A local school district is a body corporate or legal entity subject to be sued for any liability which it may lawfully incur, but the judgment rendered in such suit does not adjudicate the authority to levy a local tax for the purpose of paying the claim upon which the judgment is based; and in a mandamus proceeding to require the levy of a district tax for the purpose of paying such a judgment, the court will look behind the judgment and determine whether or not the claim upon which it is based is one for which a tax may be levied; and if it is not, the writ of mandamus will be denied.

The Selig Company brought this action against the Wrightsville Consolidated School District, its trustees, the secretary and treasurer of the board of district trustees, and the county school superintendent of Johnson County. The petition alleges that the school district is indebted to the petitioner in the sum of $175.30 principal, $49.08 interest to February 15 1941, with interest thereafter at the rate of seven per cent per annum, together with costs. The indebtedness is evidenced by a fi. fa. based upon a judgment of the city court of Wrightsville, dated February 15, 1941, in favor of the petitioner and against the Wrightsville Consolidated School District. A copy of the fi. fa. is attached to the petition as exhibit A. The petition alleges that it is the duty of the secretary and treasurer of the board of trustees with the aid of the county superintendent of schools, at or before the time for fixing the rate of taxation for the school district, to levy a tax to raise the amount to be collected for the operation and maintenance of the school district, and that it is the duty of the county superintendent of schools to aid the secretary and treasurer in fixing said rate of taxation and to certify to the board of county commissioners for the purpose of levying a tax for the operation and maintenance of the school district, and that unless mandamus nisi issue the petitioner will suffer a pecuniary loss for which it can not be compensated in damages. The plaintiff prayed for rule nisi directed to the county superintendent of schools and the secretary and treasurer, to show cause why mandamus absolute should not be issued, requiring them to levy a tax for the purpose of paying the judgment set forth in the petition; that on the hearing mandamus absolute issue requiring the defendants to levy the tax for the purpose of paying petitioner's judgment; and for process.

The defendants demurred on the ground that no cause of action is set forth in the petition. They answered, denying the material averments of the petition, and alleging that there had been no funds available to pay the judgment, the amount of which is in excess of the maximum allowed to be levied during the current year in which the indebtedness is alleged to have been created. Upon the hearing the demurrer was overruled, and by agreement the case was submitted on the pleadings as the evidence in the case. Judgment in favor of the plaintiff was rendered, granting the relief sought. To the overruling of the demurrer and to the grant of mandamus absolute, the defendants excepted.

E. L. Rowland and J. Roy Rowland, both of Wrightsville, for plaintiffs in error.

W. M. Shurling and C. S. Claxton, both of Wrightsville, for defendant in error.

DUCKWORTH Justice.

1. This proceeding is one seeking by the writ of mandamus to require public officers to act. It is available only for the purpose of requiring such officers to perform acts and duties clearly required of them by law. Code, § 64-101; Atlantic Ice & Coal Corporation v. Decatur, 154 Ga. 882, 115 S.E. 912. It is here sought to require the defendant officers to perform the acts required of the secretary and treasurer of the board of district school trustees and the county superintendent of schools in school districts levying a local tax as prescribed in the Code, § 32-1113. A condition precedent to the levy of a local school district tax is a vote of the people of the district, authorizing the same. Const. art. 8, § 4, par. 1; Code, § 2-6901; § 32-1108. The right to levy the district tax following a vote of the people authorizing...