Seaboard Air-Line Railway Co. v. Dorchester Consolidated School District , 39 Ga. App. 185 ( 1929 )

Jenkins, P. J.

Prior to the act of 1922 (Ga. L. 1922, p. 153), there was authority, under the act of 1919 (Ga. L. 1919, p.-288), for any school district to supplement the funds received from the State public-school funds, by levying a tax for educational purposes, upon an election being had for such purpose, not to exceed five mills on the dollar. This provision of law did not require, as does the subsequent act of 1922, that in the call for such election the additional tax proposed to be levied should be specified. See Stapleton v. Martin, 164 Ga. 336, 347 (6) (138 S. E. 767). The passage of the act of 1922 did not render invalid any election already held under the act of 1919. Accordingly, where an affidavit of illegality is filed to a tax-execution, issued on account of failure to pay such a local school tax, based upon the ground that the order calling the election did not specify the amount or rate of taxation to be authorized, and where in the record there is nothing that shows whether the election to determine whether the district should have local tax was held before or after the passage of the act of 1922, it will not be presumed that the levy was invalid because the order calling the election failed to specify the amount of the additional tax proposed to be levied, but, the burden of proof being upon the affiant attacking the execution, it will be assumed, nothing being shown to the contrary, that the election was legally had prior to the passage of the act of 1922 requiring such specification.

Decided January 22, 1929.

This court can not, as suggested in brief of counsel, take judicial cognizance that the school district in question was not in existence when the act of 1922 was approved.

Under the foregoing rulings, the judgment overruling the affidavit of illegality must be affirmed.

Judgment affirmed.

Stephens and Bell, JJ., concur. Gony&rs & Gowen, for plaintiff in error. O. G. Dorsey, contra.