Board of Commissioners of Roads & Revenues v. Bond , 203 Ga. 558 ( 1948 )

Where a county has levied a tax of fifteen mills "for the support and maintenance of the public schools," it can not, in addition thereto, levy another tax of fifteen mills "to pay for the building and repairing of public school buildings."

No. 16163. APRIL 15, 1948. J. Calder Bond, and twenty-four other persons, alleging themselves to be taxpayers, filed in Twiggs Superior Court against the Board of Commissioners of Roads and Revenues of Twiggs County, and against John H. Vaughn, the Tax Commissioner of the County, a petition which as amended sought to enjoin the levy of a tax for school purposes. The petition alleged substantially the following: On September 2, 1947, the Board of Commissioners adopted a resolution fixing the ad valorem taxes for the year, and providing in part, "that a tax of fifteen mills on all the taxable property . . be levied and collected for the support and maintenance of the public schools of said county." On November 11, 1947, the board of commissioners amended the levy by providing in part that a tax of fifteen mills be levied "to pay for the building and repairing of public school building as recommended by the county board of education and to be expended by the county board of education according to contract for said public school buildings." The petition alleged further that the levy as amended makes a total tax, for the support and maintenance of education, of thirty mills, in violation of designated provisions of the State Constitution. The petitioners admit that they owe the amount of ad valorem tax fixed by the board, less the amount of the excessive levy. Some of the petitioners have paid to the tax commissioner the amount so admitted and the others are ready to make such payments and will make them on or before December 20, 1947, at which time the payments would become in default.

The defendants demurred on the ground that the petition failed to set forth a cause of action. The court passed an order overruling the demurrer. On that judgment error was assigned, and the case comes to this court by direct bill of exceptions. The question for determination is whether or not the proper county authorities, having levied a tax of fifteen mills "for the support and maintenance of the public schools," can also levy an additional tax of fifteen mills "to pay for the building and repairing of public school buildings."

Article 7, section 4, paragraph 1, of the Constitution of 1945 (Code, Ann. Supp., § 2-5701) declares that the General Assembly shall not have power to delegate to any county the right to levy a tax for any purpose except those specifically set forth therein. Article 8, section 12, paragraph 1, of the Constitution (Code, Ann. Supp. § 2-7501) declares: "The fiscal authority of the several counties shall levy a tax for the support and maintenance of education not less than five mills nor greater than fifteen mills (as recommended by the County Board of Education) upon the dollar of all taxable property in the county located outside independent school systems."

There is no direct constitutional power authorizing the legislature to delegate to county authorities the right to levy a tax to repair and construct school buildings, except as such authority may be conferred by the general power (Code, Ann. Supp., § 2-5701) to levy a tax "for educational purposes" or "to build and repair the public buildings." If such power is derived under the authority to levy a tax "for educational purposes," then clearly it is subject to the fifteen-mill limitation provided for in article 8 of the Constitution. On the other hand, the term, "for educational purposes," is broad enough to cover all things necessary or incidental to the furtherance of education, which would include the construction of schoolhouses, the only limitation being the one fixed by the Constitution itself, to wit, that the levy of a direct tax for educational purposes should not exceed fifteen mills. Therefore, the delegation of authority to levy a tax for educational purposes, having fully covered the field of education, it is obvious that the following provision authorizing a levy "to build and repair public buildings," was not intended to include schoolhouses as public buildings. On the contrary, it is manifest that the clause authorizing a levy "to build and repair public buildings" has reference not to schoolhouses, but to courthouses, jails, and other like buildings as are used for the carrying on of general county business.

The present case does not involve the right of county authorities to levy a tax for the purpose of paying the principal and interest upon any bonded indebtedness incurred under the provisions of article 7, section 7, paragraph 1, of the Constitution (Code, Ann. Supp., § 2-6001), the proceeds of which were used for the purpose of building or repairing school buildings. "The provisions of article VIII, section XII, paragraph 1, of the Constitution of 1945, with respect to levying a tax by the fiscal authorities of a county as recommended by the county board of education of not less than five mills nor greater than fifteen mills for the support and maintenance of education within the county, are not intended to suffice for all phases of educational expenditures, but are separate from the power to levy a tax for the payment of bonded indebtedness for the erection of school buildings." Nelms v. Stephens County School District,201 Ga. 274 (4 c) (39 S.E.2d 651).

The petition alleging that the county authorities, having levied a tax of fifteen mills "for the support and maintenance of the public schools," could not thereafter levy an additional tax of fifteen mills "to pay for the building and repairing of public school buildings," was sufficient as against general demurrer to set forth a cause of action.

Judgment affirmed. All the Justices concur.