Vaughn v. Simmons , 139 Ga. 210 ( 1913 )

Lumpkin, J.

(After stating the foregoing facts.)1

1, 2. Provision has been made, by general laws in regard to the public-school system of the State, for creating school districts, and for determining the question of local taxation. Civil Code, § 1531 et seq. In dealing with the subject broadly the legislature doubtless considered the advantages to be derived from general laws and from having uniformity and system in the administration of educational affairs, instead of having the State cut up into an unlimited number of special school districts, with varying and conflicting regulations, laws,- and methods. At any rate, the enactment of general laws in regard to the common-school system of the State accorded with the spirit of the constitution, which declares that “there shall be a thorough system of common schools for the education of children, as nearly uniform as practicable.” Article 8, section 1, paragraph 1 (Civil Code, § 6576, Acts 1911, p. 46). By article 1, section 4, paragraph 1, of the constitution (Civil Code, § 6391), it is declared that “Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law.” It is true that in article 8, section 4, paragraph 1 (Civil Code, § 6579), it is provided that “Authority may be granted to counties, militia districts, school districts, and to municipal corporations, upon the recommendation of the corporate authority, to establish and maintain public schools in their' respective limits by local taxation,” after an election in which two thirds of the persons voting shall approve it. The two sections should be treated as in harmony with each other. The latter did not provide the method of laying out school districts,-nor destroy a system of doing so created by an existing general law. The constitution never contemplated that, in spite of the provisions of the general law, the territory of the State might be cut up by special enactments, and particular school districts be taken out of the provisions of such law. Nor can this result be reached and the uniformity of the school laws be destroyed by merely calling a school district a municipal corporation. As the population in a particular territory becomes more dense, certain local problems arise, such as those involving the preservation of good order, of public health, public highways, or the like, which are peculiar to the condition there existing. From this - arises the incorporation of a municipality. Among other things which may properly be made incidental to municipal government is education within its boundaries. But this is an entirely different thing from merely laying out a wide area of country as a school district, and seeking to bring it within the provision of the constitution by calling it a municipal corporation.

Several efforts have been made to create special school districts inconsistently with the general school law. In Barber v. Alexander, 120 Ga. 30 (47 S. E. 580), (which arose under the general school law, prior to the passage of the act of 1905), an act was passed seeking to create a special school district, with powers conferred upon the local authorities different from those provided by the general law. It was held to be unconstitutional. In Neal v. McWhorter, 122 Ga. 431 (50 S. E. 381), an act was passed to incorporate a certain town. It also undertook to extend the corporate limits over an area about four miles square, to establish a public-school system therein, and to create a board of school commissioners with power to levy taxes for school purposes on all the property in the area described, but it limited the exercise of all municipal functions to an area embraced in a circle one mile in diameter located inside the square. It was held that the 'act, at least in so far as it applied to the territory within the square but outside of the circle, was unconstitutional, in that it was an attempt to establish a school district by evasion, and was a special law enacted in a case for which provision had been made by an existing general law. In the opinion Mr. Justice Candler said: “Article 8, section. 4, paragraph 1, of the constitution of Georgia (Civil Code [1895], § 5909) authorizes the General Assembly to grant to municipal corporations power to establish and maintain public schools ‘in their respective limits5 by local taxation; but this does not carry with it the right, by palpable evasion, to incorporate a school district and mark off a town inside of it, the town to exercise all the municipal functions and the school district none." In Sellers v. Cox, 127 Ga. 246 (56 S. E. 284), there was considered an act passed August 22, 1905, and entitled “An act to incorporate the Hopeful school district in Mitchell county,55 with provisions different from those of the general school law. It was held unconstitutional. In the opinion (referring to article 8, section 4, paragraph 1, of the constitution, as amended by the act of 1903 and its ratification) Mr. Justice Evans said: “Tins section does not attempt to Iqcate any school district, but constitutes each school district, whexi located and established, as a taxing district. The effect of the amendment to section 4 is to enlarge the number of taxing districts, and not to provide for the manner of their creation. The legislature may establish and define the location of school districts by a general law, or, in the absence of any general law; it may by special act incorporate a designated area into a school district. But the legislature can not by a special act create a school district so long as there is of force a general law whereby school districts are defined and established. It is restrained from so doing by the constitution, and the amendment to section 4 of article 8 does not authorize the General Assembly by special act to create a school district so long as there is of force an existing general law by which school districts are created,” etc.

Is the act before us one creating an actual municipal corporation, with incidental powers as to its school system, or is it a special law seeking to create a school district in antagonism to the general school law, by merely labeling the school district with the name of a town? The thing declared to be incorporated was “the Town of Mitchell’s District in Pulaski county.” A considerable territory was described by land-lot lines, a river, and the county line. One brief section alone made any mention of municipal, authority other than the maintenance of a system of public schools within the district described. In that the entire' reference to municipal powers is contained in about a line and a half, where, after declaring that the style of the incorporation should be as above stated, the words were added: “with all the powers, duties, and privileges usual to municipal corporations.” Certain persons were named to act as mayor and aldermen until an election, and the same persons were named to act as a board of trustees for the school system until an election should be had at a date named. It was declared that after the election of successors to the board- of trustees, they should be ex-officio aldermen, and the president of the board should be ex-officio mayor, and it should not be necessary to elect a mayor and aldermen eo nomine. Vacancies on the board were to be filled by the board itself until the next election. Special provisions were made in regard to the maintenance and conduct of the schools within that district, and in regard to the powers of the trustees, different from those under the general school law. The only provision for any taxation within the incorporate limits was for a school tax, to be determined by the trustees and not to exceed a certain per centum of the taxable property. The sole oath of office prescribed was to faithfully discharge the duties required of the affiant by the terms of the act “providing for a system of public schools in Mitchell’s District, Georgia.” The county authorities were to retain jurisdiction over the roads and bridges “in said incorporated territory,” and work and repair them “as they do in other parts of the county.” A somewhat novel provision was that the act should be submitted to the voters within the. district prescribed, for ratification or rejection. If two thirds of the voters voting at the election cast their ballots for ratification, the act was to become immediately operative. But if the result was against ratification, the board of trustees named in the act were to order other elections in like manner every six months until the act was ratified. In this act, covering about eleven pages, and comprising twenty-seven sections, we fail to find any duties required to be discharged by the municipal authorities except in regard to the schools. A so-called municipal corporation, with nothing to do except to establish and manage schools in a rural school district, nothing with which to do anything else, and no officers except school trustees, is not a municipal corporation such as is contemplated by the constitution when it authorizes the legislature to empower municipal corporations, upon recommendation of the corporate authority, to establish a school system.

We recognize the general rules as to the power of the legislature to create a municipal corporation in broad terms, and as to the disinclination of the courts to hold acts to be unconstitutional, unless they are clearly so. But the fundamental law also declares that “Legislative acts in violation of this constitution, or the constitution of the United States, are void, and the judiciary shall so declare them.” We think-this act on its face falls within that category. The threads of legal semblance which are to be found within the act are so interwoven with the general warp and woof of unconstitutionally that they can not be separated and adjudged to constitute the expression of the legislative purpose. Nor does the rule that the existence of a municipality can not be attacked collaterally apply. The point made is that the act is unconstitutional and void, and that there has been no incorporation. See Worth County v. Crisp County, ante, 117 (76 S. E. 747).

Having held the act to be unconstitutional for the reasons stated, it is unnecessary to discuss other objections to it, such as that it contained matter differing from and’ not covered by the title, that the constitutional provision as to granting power to municipal corporations, “upon the recommendation of the corporate authority,” to establish and maintain public schools, contemplates municipalities in. existence, and not the creation of a municipality and the grant of such authority in the charter, before there are any corporate authorities to make the recommendation, etc. On the subject of the impropriety of submitting distinct issues to voters in such manner as to compel them to agree to all or none, especially if the incurring of a debt is involved, see Cain v. Smith, 117 Ga. 902, 905 et seq. (44 S. E. 5).

3. It was argued on behalf of the defendants in error that the petition was brought against the defendants, except the constable, in their individual capacity, and that this furnished ground for dismissal. The constable was proceeding to make a sale under a levy. An injunction was sought against him in his official capacity, and against the other defendants, to restrain them from exercising any powers under the act. If the act creating certain officials was unconstitutional, they would seem to have no official capacity. This furnishes no ground for dismissal.' It was error to sustain the demurrer.

Judgment reversed.

All the Justices concur.