Stewart v. Davidson

Mobley, Justice,

dissenting. I dissent from Division 1 of the majority opinion because the members of the Boards of Education of DeKalb County and of the City of Decatur acting in their official capacities are without standing to raise the question whether or not the last sentence of Section 13 (c) of the Minimum Foundation Program of Education Act, Ga. L. 1949, pp. 1406, 1415 (Code Ann. § 32-615 (c)), violates Art. I, Sec. IV, Par. I of the Constitution (Code Ann. § 2-401).

“Before a statute can be attacked by anyone on the ground of its unconstitutionality, he must show that its enforcement is an infringement upon his right of person or property, and that such infringement results from the unconstitutional feature of the statute upon which he bases his attack.” ' South Georgia Nat. Gas Co. v. Georgia Public Service Commission, 214 Ga. 174, 175 (1) (104 SE2d 97). In their original petition the members of the city and county boards did not allege that the operation of the last sentence of Section 13 (c) of the act injures their rights of person or property, but alleged instead that “it affects the private rights of the citizens and taxpayers of Fulton and DeKalb Counties.” By amendment they added that the sentence also operates “to the injury and damage of plaintiffs.” It is upon these allegations of injury that plaintiffs’ standing, or lack of standing, must be established.

Plaintiffs, acting in their official capacities as members of the city and county boards of education, are without standing to raise the constitutional question whether or not the last sentence of Section 13 (c) of the act “affects the private rights of the citizens and taxpayers of Fulton and DeKalb Counties.” In City of Chamblee v. Village of North Atlanta, 217 Ga. 517, 520 (d) (123 SE2d 663), this court held as follows: “The rule is well established that in order to raise constitutional questions, a party must show not only that the alleged unconstitutional feature injures him and deprives him of a constitutional right but he must also establish that he himself possessed the right allegedly violated. He must be within the class of persons affected by the statute objected to.

“Chamblee, not possessing any such rights as it claims the above sections violate, does not have standing to raise these constitutional objections to the incorporation of North Atlanta. Any such rights were possessed, not by Chamblee, but by the private individuals who resided in the area . . .” (Emphasis added.) In City of Macon v. Georgia Power Co., 171 Ga. 40, 47 (155 SE 34), this court held that the City of Macon had “no legal right to take up the contest in behalf of taxpayers generally and paving debtors; they are acquiescing in the taking of their property, and this is permissible even where there is a lack of due process of law.” For other cases denying persons the right to challenge the constitutionality of acts of the General Assembly affecting the rights of others, see: Reid v. Mayor &c. of Eatonton, 80 Ga. 755 (1) (6 SE 602); Hazleton v. City of Atlanta, 147 Ga. 207, 208 (4) (93 SE 202); Cooper v. Rollins, 152 Ga. 588, 592 (5) (110 SE 726, 20 ALR 1105).

Plaintiffs also allege that the application of the provision under attack results in a reduction in allotments to plaintiffs of State-contributed funds “to the injury and damage of plaintiffs.” I take this to be an allegation that the application of the provision under attack deprives plaintiffs in their official capacities as members of the city and county boards of education of public property due them in their official capacities as members of those boards. “Neither counties nor municipal corporations stand in the same position as individuals or private corporations, and as against the State they do not own the taxes collected by them and 'public property held by them as if it were private property.” (Emphasis added.) Bibb County v. Hancock, 211 Ga. 429, 440 (3) (86 SE2d 511). For this reason a county or city as to public property held by it is not entitled as against the State to equal protection of the law or to due process of law. Ellington Co. v. City of Macon, 177 Ga. 541 (1) (b), 544 (170 SE 813); Bibb County v. Hancock, 211 Ga. 429 (3a), supra. See Hammond v. Clark, 136 Ga. 313, 315 (11) (71 SE 479, 38 LRA (NS) 77).

The constitutional attack sustained by the majority is, of course, under the uniformity clause of the Constitution, Art. I, Sec. IV, Par. I (Code Ann. § 2-401), rather than under the due process or equal protection clauses thereof, but I am of the opinion that since plaintiffs would not in their official capacities have standing to urge either a due process or an equal protection attack against the last sentence of Section 13 (c) of the act, they are likewise barred from assailing that provision under the uniformity clause of the Constitution. In Ledger-Enquirer Co. v. Brown, 213 Ga. 538, 540 (100 SE2d 166), an act of the General Assembly was attacked under the uniformity clause, due process clause, and equal protection clause of the Constitution. The court treated the three attacks as one upon the theory that “The question involved in this case under each of the above provisions is one of classification.” The court said further, “It is clear that the legislature may, for purposes of legislation, classify, and may legislate with respect to, each classification. The power of the legislature to classify for the purposes of legislation, however, is not without limitation. The classification must be natural and not arbitrary. It must have a reasonable relation to the subject matter of the legislation, and must furnish some legitimate ground for differentiation.”

If, as the majority of this court agrees, the question presented by plaintiffs’ constitutional attack under the uniformity clause is one of classification, and classification is the question presented by a constitutional attack under the due process and equal protection clauses as well as under the uniformity clause, and municipalities and counties are without standing to raise the question of classification under a due process or equal protection attack because as against the State they do not own the public property held by them as if it were private property, how then may the city and county boards of education in the case at bar raise the issue of unreasonable and arbitrary classification by invoking the uniformity clause of the Constitution when this court would be bound to deny their standing to attack Section 13 (c) of the act had they instead raised such question of classification by invoking either due process or equal protection?

I would hold that the members of the Boards of Education of the City of Decatur and of DeKalb County acting in their official capacities are without standing to raise the constitutional attack which the majority of this court has sustained in their favor because as against the State Board of Education they have no property right in the funds received by them from the State Board which is protected by the constitutional provision invoked.

I am authorized to state that Justice Almand concurs in this dissent.