Georgia Iron & Coal Co. v. Tatum , 224 F. 517 ( 1915 )

NEWMAN, District Judge.

[1] I think the case of Brown v. Hawkins, 139 Ga. 697, 77 S. E. 1123, is absolutely controlling in this case. The second headnote in that case says this:

“The adoption of a resolution by a county board of education that the territory embraced in each militia district in the comity shall constitute a separate school district is not, without more, a substantial compliance with the positive requirements of the statute in relation to the laying off and marking out of the county into school districts by the county board of education; and a school district sought to be established merely by such a resolution is not a lawful district, and an election within sncli territory for the determination of the question of imposing a local tax therein for the support of public schools is illegal. The collection of a tax levied in pursuance of the election should be enjoined upon due and |)roper application by citizens and taxpayers of the territory.”

In the present case the evidence shows that the school commissioners simply declared the militia districts to be school districts, and nothing further, and it seems from. the evidence that no map was made until 1914, and that was simply carrying out the action of the school commissioners, as I understand it.

[2] Clearly these taxes cannot be collected under the decisions of the Supreme Court of the state, which must be controlling here, unless there has been such laches on the part of the trustee in bankruptcy, or the Georgia Steel Company, as to bring the case within the decision in Dobbs v. Hardin, 137 Ga. 191, 73 S. E. 582. There was no such laches here as would justify applying that decision in this case. What laches there was was that of the trustee in bankruptcy, and I do not think the Georgia Steel Company, which has resumed possession of the property and proposes now to pay all legal taxes, should be 'es-topped by his action. The trustee in bankruptcy had'on his hands a lot of unproductive property and no money. He had to borrow money to pay the taxes for former years, and altogether it does not make such a case as was shown in Dobbs v. Hardin, supra.

I think the injunction should remain in force as to the school tax, but the other taxes should be paid at once, if they have not already been paid. The court dislikes to prevent a county from collecting its taxes, but the case is controlled by the decision of the Supreme Court of the state as to the taxes claimed to be due it for school purposes.