Southern School Supply Co. v. City of Abbeville

Bell, J.

(After stating the foregoing facts.)

Under the act of the General Assembly approved August 1, 1895 (Ga. L. 1895, p. 117), creating a local system of schools for the City of Abbeville (then a town), a board of education to be selected by the mayor and council was vested with the exclusive control of the general fiscal affairs of the school system thereby established; and where the mayor and council levied, collected, and paid over to the board in a given year or years the maximmn tax allowed by the act, liabilities, though legally incurred by the board of education, were chargeable only against these funds in the hands of the board and certain other funds paid over to the board from the State taxes. Appling v. City of Abbeville, 136 Ga. 772 (72 S. E. 31).

In the absence of allegations to the contrary, this court may assume, when considering the petition on demurrer, that during the years 1920 and 1921 the mayor and council collected and paid over the maximum tax alleged to have been levied for school purposes, it being presumed that these public officers have done their duty and complied with the law. Connolly v. Atlantic Contracting Co., 120 Ga. 213 (2) (47 S. E. 575); Loudermilk v. Stephens, 126 Ga. 782 (1) (55 S. E. 956); Ponder v. Shumans, 80 Ga. 505 (3) (5 S. E. 502); Scott v. McDaniel, 64 Ga. 780 (3).

If, considering the petition on general demurrer, it could be assumed that, in the levy of taxes during the year in which the liability was incurred, provision was made for a sufficient sum to pay it, the mere fact that the board of education failed to discharge the same out of the funds levied and paid over for the purpose would not create a general liability against the city. Tinder the ruling in Appling v. City of Abbeville, supra, the plaintiff’s claim was payable only out of funds in the hands of the board. If it was a lawful claim, its payment could have been enforced by mandamus.' See Smith v. Board of Education of Washington County, 153 Ga. 758 (113 S. E. 147). The plaintiff, however, accepted a note due the following year, and after its maturity appears to have done nothing to exact payment out of the particular funds against which its claim was a charge. The fact that almost two years after the board incurred the liability the special school system was abolished would not cause its claim to then attach to other funds of the city levied and collected in its general municipal capacity. The board of education was initiated for a certain purpose and to administer a particular fund. When this board and the local system of schools were abolished, if there was a legal successor to the board, it was not the municipality but the trustees of the consolidated school district into which the Abbeville schools were merged. See Atlantic & Birmingham Ry. Co. v. Johnson, 127 Ga. 392 (2) (56 S. E. 482, 11 L. R. A. (N. S.) 1119); Walker v. City of Rome, 6 Ga. App. 59 (64 S. E. 310).

The further fact that for a consideration of $13,000 the city sold to the consolidated school district its school buildings and property, including a part or all of the articles purchased from the plaintiff, would not render the city liable. It appears that the supplies were sold to the board on account, and that later a note was given therefor, which was long past due when the consolidation of the schools and the sale of the property took place. If prior to the sale the city was not liable, there seems to be no law which would make the city answerable merely by reason of the sale. The chose in action against the board only would not be thereby converted into an actionable claim against the city. The plaintiff retained no legal or equitable title to the property purchased from it. While the note representing the indebtedness recites that “title to the said furniture and supplies shall remain in the [plaintiff] as security,” until payment of the note, the allegations of the petition, together with the original order attached thereto, clearly show that the purchase was upon open account. The board would not have had authority to place an incumbrance upon articles which it had unconditionally purchased on account several months previously, and which it had installed as necessary to the operation of the schools. Neal-Millard Co. v. Trustees of Chatham Academy, 121 Ga. 208 (48 S. E. 978); Walden v. Town of Whigham, 120 Ga. 646 (2) (48 S. E. 159); Civil Code (1910), § 899. Furthermore, the plaintiff nowhere in its pleadings seeks to rely on this provision of the note, and apparently recognizes that it has no efficacy as an enforceable agreement for the retention of title. The action was therefore not maintainable on the theory that the city had benefited by a sale of property to which the plaintiff held title.

In May, 1922, the schools of the City of Abbeville were consolidated with those of districts contiguous thereto, and by an act of the General Assembly approved August 1, 1922 (Ga. L. 1922, p. 452), the act of 1895 establishing a local system of schools for the City of Abbeville was repealed in toto. In the amendment to the petition it is alleged that thereafter, to wit, on October 10, 1922, the mayor and council made a tax levy for school purposes of one half of one per cent., this being but half of the rate allowed to be annually levied and collected by the City of Abbe-ville for schools, “the schools [of the city] being operated under the regular city school board for the spring term.” It is alleged that the city collected this tax and administered the fund through the mayor and council, and that “all of said school taxes were not paid out for school purposes,” implying that a part of the fund was diverted to other and improper purposes. Similar allegations were made with reference to a school tax levied in 1923. There being no liability at the time of the levies, none resulted by reason of the levies and the improper use of the funds derived therefrom, especially where it does not appear that the city expressly levied a tax for the purpose of paying the plaintiff’s claim, and that after the collection thereof the fund was still held by the city for that purpose. It is unnecessary to decide whether the mayor and council had authority to levy a tax for school purposes after the act creating the local system of schools had been repealed.

The action was not maintainable against the municipality for the value of the supplies purchased by the board. In no view of the case was a cause of action set forth, and the court did not err in sustaining a general demurrer to the petition as amended.

The principle laid down in the third headnote and third division of the opinion in Butts County v. Jackson Banking Co., 129 Ga. 801 (60 S. E. 149, 15 L. R. A. (N. S.) 567, 121 Am. St. Rep. 244), has no application to a case like the present.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.