Warthen v. English

Bussell, C. J.

(After stating the foregoing facts.) In the constitution of 1877 as. originally adopted by the people, art. 8, see. 4, par. 1, providing for an educational tax for public schools was as follows: “Authority may be granted to counties upon the recommendation of two grand juries, and to municipal corporations upon the recommendation of the corporate authority, to establish and maintain public schools in their respective limits, by local taxation; but no such local laws shall take effect until the same shall have been submitted to a vote of the qualified voters in each county or municipal corporation, and approved by a two-thirds vote of persons qualified to vote at such election; and the General Assembly may prescribe who shall vote on such question.” By the passage of the' act approved August 17, 1903 (Acts 1903, p. 23), art. 8, sec. 4, par. 1, as above quoted, was proposed to be amended by striking out the'words “-upon the recommendation of two grand juries,” and substituting therefor “militia districts, school districts,” and by striking out the words “a two-thirds vote of persons qualified to vote,” and substituting therefor the words “two-thirds majority of those voting.” This amendment having been submitted to the people for ratification and adopted by the people of the State, the section referred to was altered to read as follows: “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; -but no such laws shall take effect until the same shall have been submitted to a vote of the qualified voters in each county, militia district, school district, or municipal corporation and approved by two-thirds majority of persons voting at such election, and the General Assembly may prescribe who shall vote on such questions.” It will be noted that under this amendment power was given to school districts to establish and maintain public schools by local taxation, but the provision was not self-executing, and required legislation ; and also that this grant of the right of local taxation should be submitted to and approved by “two-thirds majority of persons voting at such election,” instead of by “a two-thirds vote of persons qualified to vote at such election,” indicating a purpose to render the power to tax less difficult to obtain than theretofore.

In 1919 the General Assembly submitted an amendment to art. 8, sec. 4, par. 1, of the constitution ás previously amended, so as to grant authority to the counties of the State to levy a local tax for the support of the public schools, but required the county authorities to levy a tax for that purpose. This proposed amendment was ratified by the people on November 2, 1920; and the result having been proclaimed by the Governor as provided by law, it became a part of the constitution of the State. This amendment, by the striking out of art. 8, sec. 4, par. 1, of the constitution the words, “but no such laws shall take effect until the same shall have been submitted to a vote of the qualified voters in each county, militia district, school district, or municipal corporation, and approved by two thirds majority of persons voting at such election; and the General Assembly may prescribe who shall vote on such questions,” and inserting in lieu thereof, “The proper county authorities whose duty it is to levy taxes for county purposes in this State shall, on the recommendation of the board of education, assess and collect. annually for the support of the public schools under its control not less than one (1) nor more than five (5) mills on the dollar of all taxable property of the county outside of independent local systems,” 'rendered it unnecessary that the question of this particular local taxation for the support of public schools under control of the board of education be submitted to a popular vote, provided the tax thus imposed did not exceed five mills on the dollar upon the taxable value of the property of the county. Since the adoption of the amendment, art. 8, sec. 4, par. 1, of the Constitution provides as follows: “Authority is granted to the counties and municipal corporations, upon the recommendation of the corporate authority, to establish and maintain public schools in their respective limits by local taxation. The proper-county authorities whose duty it is to levy taxes for county purposes in this State shall, on the recommendation of the board of education, assess and collect taxes for the support of public schools under its control, not less than one nor more than five mills on the dollar of all taxable property of the county outside of independent local systems, which shall be distributed equitably according to the school population, tax values, the number of teachers and their grade of license, among the public schools therein. An additional levy to that already allowed, not to exceed five mills, shall be permissible in independent local systems, municipalities, or school districts, on a two-thirds vote of those voting. No additional election shall^be required to maintain any local school tax now in existence in districts, counties, or municipalities; provided this bill shall not apply to counties having a local school system of taxation adopted prior to the • constitution of 1877.”

TJpon the hearing in this case the facts alleged in the petition were admitted to be true; and since it is stated in the petition that the levy by the commissioners of roads and revenues of Washington County does not exceed five mills upon the taxable value of the property, the judge of the superior court correctly refused the injunction prayed for. It appears that the board of education recommended the assessment and collection of the tax, and that the Davisboro School District No. 17 was not an independent local school system within the meaning of that term. Nothing was held in the case of McMillan v. Tucker, 154 Ga. 154 (113 S. E. 391), which conflicts with.what we now hold. In fact our ruling is based upon that authority. The levy in the McMillan case was held to be illegal only because in that case the commissioners of Irwin County levied a tax of seven and one half mills instead of five mills as provided in the constitution. The constitution limits the tax now referred to to five mills, and the board of education and the county commissioners of Irwin County attempted to levy seven and one half mills; and accordingly the court said: “So the levy of two and one half mills in addition to the rate fixed by the popular vote in Irwin County was without authority of law, and the same should have been enjoined.”

The validity of the tax levies within the local school district will not be dealt with at this time, as this question is not presented in the record. Judgment affirmed.

All the Justices concur.