Board of Education v. Board of Commrs C.

1. Under the provision of art. 8, sec. 12, par. 1 of the Constitution of 1945, it is mandatory upon county boards of commissioners of roads and revenues, or other fiscal authorities levying taxes for the county, to follow the recommendation of county boards of education as to the tax levy to be made for the support of education, where such recommendation is within the limitation defined by the Constitution.

2. The demurrer to the petition was properly overruled.

Nos. 15721, 15730. FEBRUARY 5, 1947. W. M. Syms, E. D. Brown, G. O. Wood and W. D. Mann, alleging that they are the duly qualified and acting members of the Board of Education of Wilcox County, and that their petition is filed in their official and representative capacity as such members, prayed for a writ of mandamus against Charles E. Richey, Joe Jones, S. G. Carswell, Lloyd Pass, and M. B. Wilcox, as members of the Board of Commissioners of Roads and Revenues of Wilcox County. The petitioners alleged that: They are charged under the laws of Georgia with the duty of operating and maintaining the schools of Wilcox County, and it is made their duty to annually recommend to the fiscal authorities of Wilcox County (the Board of Commissioners of Roads and Revenues) the rate of tax levy to be made for the support and maintenance of education in the county. In the discharge of their duties, the petitioners, on August 6, 1946, recommended to the defendants a tax levy for such year of 15 mills, and notified the defendants on such date of their action. It was mandatory upon the defendants to levy the tax recommended by the petitioners. The defendants, however, have failed and refused to levy the tax recommended, and have levied only 10 mills for school purposes in Wilcox County for the year 1946. The defendants have no right to refuse to make the levy recommended, they have no discretion in the matter, but it is their duty under the law to levy the tax recommended by the petitioners. The petition contained prayers for process, that mandamus nisi issue, and that, upon the hearing, it be made absolute.

On September 3, Honorable R. Eve, Judge of the Superior Courts of the Tifton Judicial Circuit, in an order stating that "jurisdiction is assumed because O. T. Gower, Judge of the Superior Court of Cordele Judicial Circuit, is out of his Circuit," sanctioned the petition and ordered the defendants to show cause before Honorable O. T. Gower, on September 21, why a mandamus absolute should not be issued against them as prayed in the petition.

The answer admitted that the petitioners are the duly qualified and acting members of the Board of Education of Wilcox County; the defendants are members of the Board of Commissioners of Roads and Revenues of the County; and that the petitioners are charged with the responsibility of operating and maintaining the schools of Wilcox County, and it is made the duty of the petitioners to recommend the rate of levy to be made for the support and maintenance of education in Wilcox County. The defendants denied the allegations of the fifth paragraph, to the effect that the petitioners in their representative capacity as members of the county board of education, on August 6, 1946, determined that a tax levy of 15 mills should be made for the year 1946. The defendants admitted receiving on August 6, 1946, the notice recommending a 15-mill levy. They contended that it was not mandatory that they levy a tax of 15 mills as recommended, for the reasons that: the board of education acted arbitrarily; such levy is unnecessary for the support of the schools; tax values have increased, and while there may have been some additional expense in the operation of the schools, a levy of 10 mills would be amply sufficient for the maintenance and operation of the schools; and the recommendation was an abuse of discretion on the part of the board of education. They prayed that the mandamus be denied.

By amendment the defendants alleged that, while they received on August 6 a notice from the board of education recommending a levy of 15 mills, such recommendation was never made or acted upon by the board of education, but was the act of the county superintendent of schools individually, and had no binding effect on the defendants. The amendment contained other allegations in support of the defendants' contention that a levy of 15 mills would be excessive.

By agreement the judge of the superior court considered and passed upon the contentions of the parties as made by the pleadings, without the introduction of evidence, and the prayers of the petitioners for mandamus absolute were denied. The exception in the main bill is to the overruling of the general and special demurrers of the petitioners to the answer of the defendants, and to the judgment of the court denying a mandamus absolute.

The defendants demurred to the original petition, on the ground that the Board of Education of Wilcox County "is not a body corporate, or legal entity authorized under the laws of this State to maintain said action." The court overruled the demurrer, and the exception in the cross-bill is to this judgment. 1. Art. 8, sec. 12, par. 1, of the Constitution (Code, Ann. Supp., § 2-7501) provides in part: "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."

Art. 8, sec. 4, par. 1 of the Constitution of 1877, as amended, provided in part as follows: "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."

A comparison of the provisions of the Constitution of 1877 with the provisions of the Constitution of 1945, shows that in each instance the fiscal authorities of the several counties of this State "shall levy" on the recommendation of the board of education of such county an amount, within the limitation prescribed, for the maintenance and support of the public schools in the county.

By an act entitled "County Boards of Education," approved February 1, 1946, in § 17 (Ga. L. 1946, p. 212), it is provided: "The County Board of Education shall annually recommend to the fiscal authorities of the county the rate of levy to be made for taxes for the support and maintenance of education in the county (exclusive of property located in independent school districts), and likewise notify the State Revenue Commissioner of the rate of the levy to be made on such property in said county for the support and maintenance of education."

From a consideration of the constitutional provisions, and the act of 1946, supra, it appears that neither the General Assembly, nor the people of this State, desired that the support of education should be contingent upon an act which could, but might not, be performed. In order to remove any doubt or contingency, the General Assembly provided that county boards of educationshall make a recommendation, and the people of Georgia, in the adoption of the Constitution, did not grant to the fiscal authorities of any county discretion as to the amount to be levied for educational purposes; the Constitution in each instance providing that such authorities shall levy the amount recommended.

The provisions of the Constitution of 1877 cited were construed by this court in Smith v. Board of Education ofWashington County, 153 Ga. 758 (113 S.E. 147), where it was held that under a proper construction of such paragraph the recommendation of the board of education is mandatory upon the board of commissioners (being the fiscal authority to make such tax levy). In Rabinowitz v. Douglas, 168 Ga. 697 (148 S.E. 740), it was held that the recommendation made by county boards of education to county commissioners, or other proper fiscal authority, is mandatory.

Under the constitutional mandate, and authorities cited, it is not material whether or not the Board of Education of Wilcox County may have had on hand a substantial cash reserve; nor is it material that the board of commissioners may not have concurred in the reasons prompting the recommendation made. The fact that money in excess of that actually to be used might be raised by such levy, was no concern of the Board of Commissioners of Roads and Revenues, such board not being vested with discretionary power as to the recommendation made. The board of commissioners is bound by the highest law that the people of Georgia can enact, the Constitution of the State.

The answer, as a matter of defense, states that the recommendation made was not the recommendation of the County Board of Education, but was the act and recommendation of the County School Superintendent. Later by several allegations and averments in their response, the defendants clearly treat the recommendation made as that of the board of education. The defendants' answer, properly construed on general demurrer, admits that the action taken as to the recommendation made was the action of the board of education. It is an elementary rule that an inference unfavorable to a party claiming a right will on general demurrer be construed most strongly against such party. See Krueger v. MacDougald, 148 Ga. 429 (96 S.E. 867);Charles v. Sterling Security Brokerage Co., 182 Ga. 480 (185 S.E. 807). In this case the positive and direct subsequent admissions of the defendants, that the recommendation made was that of the petitioners, must prevail over the prior unsupported allegation that the recommendation made was that of the County Superintendent of Schools.

The answer of the defendants set forth no defense to the action, and it was error to overrule the general demurrer to such answer, since the Constitution and laws of this State do not grant to boards of county commissioners of roads and revenues, or authorities levying taxes for the counties of this State, any discretion in following the recommendations of county boards of education.

2. Under the Constitution of 1945, art. 8, sec. 5, par. 1 (Code, Ann. Supp., § 2-6801), it is provided in part: "Each county, exclusive of any independent school system now in existence in a county, shall compose one school district and shall be confined to the control and management of a County Board of Education." By an act of the General Assembly approved February 1, 1946, in § 8 thereof (Ga. L. 1946, p. 209), it is provided that each county, exclusive of any independent school system, "shall compose one school district and shall be confined to the control and management of a County Board of Education." Under the provisions of the Constitution and the act of the General Assembly cited, Wilcox County is one school district and is such a body corporate or legal entity as can maintain the present action, it being distinctly provided that county school districts shall act by and through a county board of education.

The present action was brought in the names of stated persons, composing the County Board of Education of Wilcox County. In TyTy Consolidated School Dist. v. Colquitt Lumber Co., 153 Ga. 426 (112 S.E. 561), and Wrightsville Consolidated School Dist. v. Selig Co., 195 Ga. 408 (2) (24 S.E.2d 306), this court has ruled contrary to the contentions of the Board of Commissioners of Roads and Revenues. It was not necessary that the board of education allege that Wilcox County is a school district, when it is made a school district by both the constitutional provision and the statutory enactment cited.

The case of Mattox v. Board of Education, 148 Ga. 577 (97 S.E. 532, 5 A.L.R. 568), is clearly distinguishable from the cases of Ty Ty Con. School Dist. v. Colquitt Lumber Co., supra, and Wrightsville School Dist. v. Selig Co., supra. In the Mattox case, the real question for determination was whether or not a money judgment could be had against the board of education, and this court held that mandamus was the only adequate and specific remedy at law. The statement in theMattox case, that a county board of education is not a body corporate with authority to sue and be sued in the ordinary sense, does not mean that they could not be sued under any circumstances. In the Mattox case, as in Board of Education ofBaker County v. Hall, 189 Ga. 615 (7 S.E.2d 183), the action was improperly brought. In the latter case, there was no allegation that named persons were acting in their representative and official capacity as members of the board of education in bringing the action, nor was there any allegation which would imply that the action was brought for and on behalf of a school district. In Smith v. Board of Education of WashingtonCounty, 153 Ga. 759 (113 S.E. 147), the plaintiff board of education did not bring its action in the names of individuals as composing the board of education. It was alleged that the board of education was a body corporate and politic, and while the court in division 2 of the Smith case held that this was not true in the usual and ordinary sense, yet it was held that, where the board of education acts upon matters lawfully within its jurisdiction, it is the county acting through its corporate authority, and the judgment on behalf of the Board of Education of Washington County was affirmed.

The cases cited and relied upon by the defendants are clearly distinguishable on their facts from the present case, and nothing here held is in conflict therewith. The trial court properly overruled the demurrer to the petition of the board of education.

Judgment reversed on the main bill of exceptions; affirmed onthe cross-bill. All the Justices concur.