Wrightsville Consolidated School District v. Selig Co. , 195 Ga. 408 ( 1943 )

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.

No. 14397. FEBRUARY 11, 1943. 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. 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. Code, §§ 2-6901, 32-1108. The right to levy the district tax following a vote of the people authorizing the same may be withdrawn by a similar vote of the people to that effect, after it has been in operation for over three years. § 32-1110. Thus it is clear that under the statutes there is no prima facie authority existing in any school district in this State to levy a district school tax. To state a prima facie case that shows a duty upon the defendants here to levy a district school tax, the petition must show that such tax levy has been authorized as required by the above constitutional provision and statute. In the absence of such averment the petition shows neither the authority nor the duty of the secretary and treasurer and county superintendent of schools to levy a district tax in the Wrightsville Consolidated School District. Powell v. Hall Hardware Co., 156 Ga. 614 (119 S.E. 595); Powell v. Jenkins, 157 Ga. 546 (121 S.E. 686); Hannah v. Lovelace-Young Lumber Co., 159 Ga. 856 (3) (127 S.E. 225); Wright v. Atlantic Coast Line Railroad Co.,165 Ga. 101 (139 S.E. 817). See also, Barksdale v. Hayes,134 Ga. 348 (67 S.E. 852); Robert v. Wilkinson County,137 Ga. 601 (73 S.E. 838); Wood v. Floyd County, 161 Ga. 743 (131 S.E. 882); Decatur County v. Praytor c. Co., 163 Ga. 929 (137 S.E. 247); Daniel v. Hutchinson, 169 Ga. 492 (150 S.E. 681, 66 A.L.R. 793). In order to state a cause of action the petition must also show that the claim which the petitioner seeks to get paid by the levy of a tax is one for the payment of which a local tax can be lawfully levied and collected. Brunson v. Caskie, 127 Ga. 501 (56 S.E. 621, 9 L.R.A. (N.S.) 1002). The present petition contains neither of these essential averments, and hence it stated no cause of action and was subject to the general demurrer. The case having been heard on the pleadings as the only evidence, and the evidence thus failing to show these essentials, it was error to overrule the demurrer and grant mandamus absolute.

2. The defendants assail the judgment of the petitioner and contend that it is a nullity, for the reason that the Wrightsville Consolidated School District is not a body corporate or such a legal entity as can be subjected to suit. This contention is unsound. The identical question so raised has been decided adversely to the defendants' contention, in a decision of this court concurred in by all of the Justices. Ty TyConsolidated School District v. Colquitt Lumber Co., 153 Ga. 426 (112 S.E. 561). It was there said: "The plaintiff in error, a school district, is such a body corporate under the law that it may be sued, where it has incurred a liability under the law." However, despite the fact that the school district is subject to be sued where it has incurred a liability under the law, the judgment against the district in such suit is not res judicata on the question of the right of the officers to levy a tax for the purpose of paying that judgment, in a mandamus proceeding to compel a levy of such tax; but in the mandamus proceeding the court will and must look beyond the judgment and determine for itself the question as to the authority to levy such tax. In Brunson v. Caskie, supra, it was said: "Before the writ of mandamus will issue to compel the county commissioners to issue their warrant upon the treasurer to pay a debt, it must appear that the debt comes within the classes provided in the constitution for which a tax may be levied." In that opinion it was held that when it appears in such a case that the county was without power to levy a tax to pay the claim in the suit on which judgment was founded, the principle of res judicata does not apply, "and the court will go behind the judgment to ascertain if the liability of the county be such that it may legally levy a tax to discharge it." In Powell v. HallHardware Co., supra, after ruling that the court erred in granting mandamus absolute on an application to compel the school officials to levy a district tax, where the application failed to allege and the agreed statement of facts failed to show that the school district was one in which the levy of a local school tax was authorized, it was said: "The fact that a judgment has been rendered against the trustees of a school district does not affect the ruling made above." It was further held that the levy of a tax and proceedings by mandamus to compel the levy of a tax were questions not involved, and hence not passed on by this court, in Ty Ty Consolidated School District v. ColquittLumber Co., supra. It follows, that although a school district may be sued, when it is sought by mandamus proceedings to compel the levy of a district tax for the purpose of paying the judgment rendered in a suit against the district, the court will go behind such judgment and determine for itself whether or not the claim upon which the judgment is based is one for the payment of which a tax may be lawfully levied and collected; and that, notwithstanding such judgment, if there does not exist authority of law for the levy of a tax to pay such claim, mandamus will be denied.

Judgment reversed. All the Justices concur, except Reid, C.J., absent because of illness.