186 Ga. 200 | Ga. | 1938
Lead Opinion
In section 3 of the charter of the Board of Education and Orphanage for the County of Bibb, ajs amended (Ga. L. 1872, p. 388; 1873, p. 218; 1876, p. 314), it is provided: “That the said board shall be entitled to, and shall receive for the purposes aforesaid from the State School Commissioner, the pro rata share of Bibb County of all taxes now paid to the State, and specially set apart for educational purposes, and all appropriations for said purposes; and from the Treasurer of the State of Georgia the pro rata share of said county of all endowments, devises, gifts, and bequests made, or hereafter to be made, to the State or State Board of Education, and of any anjd all educational incomes and funds not belonging to and due to the State University, now in the treasury of the State, and of one half of the net earnings of the Western & Atlantic Railroad now in the treasury of the State, or hereafter to be deposited — said pro rata share to be determined by the ratio which the number of children, white and colored, in said county, between the ages of six and eighteen, bears to the number of white and colored children in the State between the ages of six and eighteen; and said board shall further have the power to assess such tax upon the taxable property of said County of Bibb as they may think necessary to support the system of schools and orphan homes which they may establish, which tax, when approved by the Board of County Commissioners of Bibb County, shall be levied by the Ordinary of said county, and collected like other taxes of said county.” In section 3 of the equalizing-opportunities act of 1937 (Ga. L. 1937, p. 882) provision is made for division of the several counties in the State and the various independent school systems into “units of administration” to be managed by the local superintendents and
One ground of attack upon section 3 of the body of the incorporating act is that it is void as violative of article 3, section 4, paragraph 5, of the constitution of 1868 (the constitution then in force) inhibiting passage of any “law or ordinance . . which refers to more than one subject-matter, or contains matter different from what is expressed in the title thereof.” The foregoing quotation from the constitution of 1868 appears also in article 3, section 7, paragraph 8, of the constitution of 1877. The provision in the constitutions appears respectively in the Code of 1873, § 5056, and the Code of 1933, § 2-1808. It was alleged that the act was violative of the constitution, “for the reason that the title of same made no reference to the appropriation of funds as provided in section 3, and section 3 which purported to appropriate funds to said county on the basis contended for by petitioner was a subject-matter separate, independent, and distinctly different from the subject-matter stated in the title of said act.” This ground of attack is not to be construed as making the question that section 3 of the act referred to more than one subject-matter,
The ruling announced in headnote 2 rests upon the principle announced in the first division, and does not require elaboration further than the statement that the portion of the act of 1870 sought to be repealed was in conflict with the provisions of the repealing act.
Another ground of attack on section 3 of the incorporating act is that it is violative of article 1, section 29, of the constitution of 1868 (Code of 1873, § 5021; Code of 1933, § 2-5004), which provides that: “No poll-tax shall be levied except for educational purposes, and such tax shall not exceed one dollar annually upon each poll.” Also, that it is violative of article 6, paragraph 3, of the constitution of 1868 (Code of 1873, § 5134), which provides: “The poll-tax allowed by this constitution, any educational fund now belonging to this State — except the endowment of, and debt due to, the State University — or that may hereafter be obtained in any way, a special tax on shows and exhibitions, and on the sale of spirituous and malt liquors — which the General Assembly is hereby authorized to assess — and the proceeds from the commutation for militia service, are hereby set apart and devoted to the support of common schools.” It is alleged that section 3 of the act is violative of these provisions of the constitution of 1868, for the reasons that section 2 of the act in question expresses authority upon the corporation “to organize homes for the destitute orphans of said county under the age of sixteen years, and to provide for the education and maintenance of said orphans,” and section 3 of the act provides “that the said board shall be entitled to and shall receive for the purposes aforesaid -from the State
Another attack on section 3 of the incorporating act is that it is violative of article 8, section 1, paragraph 1, of the constitution (Code of 1933, § 2-6601), which provides: “There shall be a thorough system of common schools for the education of children, as nearly uniform as practicable, the expenses of which shall be provided for by taxation, or otherwise.” This attack complains of violation of the constitution of 1877. The act in question was adopted in 1872 while the constitution of 1868 was in effect. It is not stated how or why it is contended that section 3 of the act violates or is affected by the designated section of the constitution of 1877. The constitution of 1868 did not contain the language “as nearly uniform as practicable.” See article 6, paragraph 1 (Code of 1873, § 5132). This attack is too indefinite to present any question for decision. This may also be said of the attack on the whole act of incorporation (Ga. L. 1872, p. 388), complaining that it is violative of article 1, section 4, paragraph 1 (Code, § 2-401), of the constitution of 1877, which declares: “Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law.” The provision, “no special law shall be enacted in any case for which provision has been made by an existing general law,” was not contained in the constitution of 1868. See article 1, paragraph 26 (Code of 1873, § 5018).
The incorporating act (Ga. L. 1872, p. 388) as amended has been construed and applied by the administrative State and county officials, conformably to the foregoing rulings, for more than sixty years. It was a valid law under the constitution of 1868, existing at the adoption of the constitution of 1877. It was a special law creating a local school system for the- County of Bibb. It was not repealed, but on the contrary was preserved by article 8, section 5, paragraph 1, of the constitution of 1877 (Code of 1933, § 2-7001) : “Existing local school-systems shall not be affected by this constitution.” In Smith v. Bohler, 72 Ga,. 546, it was held: “The Board of Education of Bichmond County is one of the county authorities, and under the. constitution of 1868 the
In section 3 of the equalizing-opportunities act of 1937 (Ga. L. 1937, p. 882), provision is made for allotment of State public-school funds to counties differently than as provided in section 3 of the incorporating act of 1872, dealt with in the foregoing divi
The ruling stated in headnote 8 does not require elaboration. Judgment reversed.
Concurrence Opinion
concurring. I concur in the judgment and in the opinion as written, except that the first and second divisions do not express the precise reasons which have led me to join in the conclusions therein stated. The act of 1872 on which the complainants rely purports by its caption to be a special act having sole and exclusive reference to Bibb County. If there were no other considerations except a comparison of this act with the constitution of 1868, I would be inclined to say that sections 3 and 6 contain
There is no hint in this record that the State board of education or any other department or official ever questioned the act of 1872 until after the passage of the act of 1937, on which the State board relies in this proceeding. In the' constitution of 1877 statutes of this class are mentioned and preserved, subject, however, to judicial decision as to their validity. Code, §§ 2-7001, 2-8504. In 1887 the General Assembly passed a general act relating to public schools, by section 53 of which it was provided, “that nothing contained in this act shall be construed to annul or repeal any local law now of force in any city or county in this State, providing for
From 1872 until 1887, that is, for a period of fifteen years, the rule of apportionment under the general law was different from that contained in the special act of 1872. See general act 1872, p. 64, § 8. There is nothing to show that during this period the State authorities did not apportion to Bibb County its share of the school fund on the basis of the special act as distinguished from the general act. For the next fifty years there was no reason to distinguish between the general and the special law, in the matter of apportionment, the rule being the same under each. So the special act of 1872 is presented to us not as a fresh statute to be examined solely by a comparison of its provisions Ayith the inhibitions of the constitution. On the contrary, it is fortified by contemporaneous construction and practical application over a long period, together with express exception from the constitution of 1877, and legislative recognition in three later enactments during a period of sixty-five years. Since the invalidity of the act is not entirely free from doubt, these additional considerations necessarily enter on the side of its constitutionality. On the whole, it can not be declared beyond a reasonable doubt that the act is unconstitutional as containing matter different from what is expressed in its title. While the foregoing remarks have been addressed to that question only, which, to the mind of the writer, is the closest point for decision, the same reasoning might, if necessary, be applied, either in whole or in part, to the other constitutional questions raised.