160 Ga. 752 | Ga. | 1925
Lead Opinion
1. Under art. 8, see. 1, par. ’ 1, of the constitution of this State (Civil Code of 1910, § 6576), as amended, “there shall be a thorough system of common schools for the education of the children, as nearly uniform as practicable, the expense of which shall be provided for by taxation, or otherwise. The schools shall be free to all children of the State, but separate schools shall be . provided for the white and colored races.” Acts 1911, p. 46.
2. A charge for matriculation can not be imposed as a condition precedent to admission to a public school forming a part of such general system, of a child living in the territory of the school and otherwise qualified. Irvin v. Gregory, 86 Ga. 605 (13 S. E. 120); Mayor &c. of Gainesville v. Simmons, 96 Ga. 477 (23 S. E. 508), s. c. 99 Ga. 400 (27 S. E. 710); Edalgo v. So. Ry. Co., 129 Ga. 258, 266 (58 S. E. 846); Wilson v. Stanford, 133 Ga. 483 (3), 485 (66 S. E. 258); Brewer v. Ray, 149 Ga. 596 (101 S. E. 667).
3. Mandamus is an available remedy to require a board of trustees of a school district in this State to perform a duty imposed upon them by law. Mattox v. Board of Education, 148 Ga. 577, 581 (97 S. E. 532, 5 A.L. R. 568); Wilkerson v. City of Rome, 152 Ga. 762 (3) 110 S. E. 895).
4. Where certain resident citizens and taxpayers of a local school district, whose children were refused admission to a public school without the prepayment of a matriculation fee, brought a petition for mandamus against the trustees of the public school, and others, in order to require them to admit such pupils to the school without the prepayment of the matriculation fee; and where the trustees filed an answer to the petition, which, considered in connection with the petition as amended, showed that there was an agreement between the trustees and the superintendent of the school, that the latter should continue to conduct the school in the public-school building for the balance of the' period of nine months so as to make the school “an accredited school,” the trial judge was authorized to hold that, though in the answer it was claimed that the school was a private school, it was in fact a public school having the same character it had before this agreement was made; and consequently, under the principles ruled in the preceding three headnotes, the court did not' err in making the 'mandamus absolute.
Judgment affirmed.
Concurrence Opinion
concurring specially. I think the trial judge was authorized by the pleadings to assume the school, as and where it was being conducted, to be a public school. The statement in the pleadings that it was a private school was a mere conclusion of the pleader, and the judge was amply authorized by the statements and admissions in the pleadings to find as a matter of law fhat the school was in fact a public school, and that the efforts to avoid the action sought by the petitioners by conducting a public school illegally had been aborted. A school whose very
Dissenting Opinion
I dissent from the opinion of the majority of the court as announced in headnote 4. It is assumed in the opinion that the school in question is “a public school,” whereas the petition and the amended answer of the defendant make an issue of fact as to whether the school in question is a public or a private school. The petition alleged that it was being operated as a public school. The amended answer averred that the “superintendent of