Pace v. County Board of Education
105 S.E. 366
Ga.
1920
Check Treatment
Fish, C. J.

(After stating the foregoing facts.) The constitution of this State, article 8, section 4, paragraph 1 (Civil Code of 1910, § 6579), declares: “Authority may be granted to counties, militia districts, school districts, and to municipal corporations upon the recommendation of the corporate authoritjr, to establish and maintain public schools in their respective limits by local taxation,” etc. This provision manifestly limits the power of the General Assembly to grant to counties, militia districts, school districts, and municipal corporations authority to establish and maintain public schools only within their respective territories, by local taxation; and a fund raised by local taxation in one county, militia district, school district, or municipal corporation can not be lawfully applied to the establishment and maintenance of public schools in another county, district, or municipality. "Where children of school age living in one school district or municipality attend a public school in another district or municipality, to apply a fund, or any portion thereof, raised by local taxation in the school district or municipality in which they reside, towards the payment of their tuition in the school which they attend, would be to devote the tax fund towards the maintenance of such school. The fact that the children can more advantageously or conveniently attend the public school of another district than where they reside does not affect the legal question here involved. County boards of education have authority to determine matters of local controversy in reference to the construction or administration of the school laws' *779within their jurisdiction. “ But they have no power to unlawfully give to a separate local school system money which does not properly belong to it, nor to misapply public funds arising from taxation.” Clark v. Cline, 123 Ga. 856, 865 (51 S. E. 617).

In Meadows v. Board of Education of Paulding County, 136 Ga. 153 (71 S. E. 146), it was held, that, “where neither district has adopted the provisions of the school law as to local taxation, they [the county board of education] may allow pupils in one district to attend a school in an adjoining district where it is more convenient and accessible to them, and appropriate the proportionate share of the public-school fund to which such children are entitled to the support of the school which they actually attend. Their action is not illegal in this respect, and any complaint as to its- propriety must be made to the county board of education.” In the opinion it was said: “It will be borne in mind that neither the Granger nor the Brownsville district has adopted the provisions of the McMichael ’ law with reference to the support of schools by local taxation. Therefore there can be no complaint that .the money of any taxpayer is being diverted to pay for the support of the school. The specific complaint is that the board of education, by allowing the pupils in the Granger district to thus cross the line, to attend the Bethel school, is giving to the Bethel school the proportiohate part of the school fund to which these children from the Granger district are entitled; and as a result the attendance in the Granger district is reduced, and the amount derivable from the public-school money is to that extent diminished, which requires an increased supplemental support to the common-school fund to run the Granger school during the entire year, or for a greater period than would be authorized by the funds obtained solely from the public-school money. There is' nothing in the various provisions of the school laws which prohibits this course.” There is a strong implication in that case, therefore, that if the two school districts involved had adopted the provisions of the statute with reference to the support of their respective schools by local taxation, and some of the pupils of the Granger district were attending the school of the Brownsville district, and the portion of the fund raised by local taxation in the Granger district for the establishment and maintenance of its schools was being paid *780to the governing authorities of the Brownsville school district, then it would have been decided that such payment was an unlawful appropriation of the local 'tax fund of the Granger district.

From what has been said it follows that it was error to refuse an interlocutory injunction.

Judgment reversed.

ATI the Justices concur, except George, J., dissenting. -