127 Ga. 246 | Ga. | 1906
(After stating the facts.)
Art. 8, see. 4, par. 1, of the constitution originally was as follows: “Authority may be granted to counties, upon the recommendation of two grand juries, and to municipal corporations upon the recommendation of the corporate authority, to establish and maintain public schools in their respective limits, by local taxation; but no such local laws shall take effect until the same shall have been submitted to a vote of the qualified voters in each county or municipal corporation, and approved by a two-thirds vote of persons qualified to vote at such election; and the General Assembly may prescribe who shall vote on such questions.” Civil Code, § 5909. It was amended so as to read: “Authority may be granted to counties, militia districts, school districts, and to municipal corporations, upon the recommendation of the corporate authority, to establish and maintain public schools in their respective limits by local taxation; but no such laws shall take effect until the same shall have been submitted to a vote of the qualified voters in each, county, militia district, school district, or municipal corporation and approved by two-thirds majority of persons voting at such election, and the'General Assembly may prescribe who shall vote on such questions.” Acts of 1903, p. 23. The subject-matter of this article of the constitution is “Education.” The first section declares that “there shall be a’ thorough system of common schools for the education of children in the elementary branches of an English education only, as nearly uniform as practicable, the expenses of which shall be provided for by taxation or otherwise.” The next section creates the office of State school commissioner; the third section sets apart certain funds and incomes for the support of the common schools. • Then follows the fourth section, above set out, which empowers the legislature to confer authority on the taxing districts therein named to establish and maintain public schools in their respective limits by local taxation. This section does not attempt to locate any school district, but constitutes each school district, when located and established, as a taxing district. The effect of the amendment
The defendants disclose by their answer, (1) that in financing their illegal school project they have, without any authority under' the act of 1905, borrowed two inconsiderable sums of rponey from private parties, with the understanding that repayment should be made out of the local school tax fund which they expected to collect in the fall of the year. Granting that these private individuals may have been misled into parting with their money by the-belief that the plaintiffs recognized the school act as valid, yet the former were bound to know that the trustees, under that act, were-without authority to anticipate the realization of funds for school
And lastly, the plaintiffs are said to be estopped, because the trustees, in the month of January preceding the filing of the petition, had bought on credit a mule, as well as feed for the same, and this indebtedness was incurred on the faith of the plaintiff’s acquiescence in the validity of the local act. It is not necessary to question the propriety or legality of the purpose of the board of school trustees to furnish transportation to pupils residing at a distance from the schoolhouse -established by them, the expense to be paid out of the fund realized from a tax levied for the maintenance of the school. For the purposes of this case, we may concede that the purchase of a mule and provender came within the purview of the act, and was proper in order that some of the pupils might be transported to the school. As we have pointed out, the plaintiffs are not estopped by the executory contracts with the teachers, nor by the unauthorized loans; and as the act is unconstitutional, the trustees can not further legally maintain the school. It would therefore seem absurd to hold that .the plaintiffs are es-topped to question the legality of the tax, because of the alleged necessity of raising funds to pay- for a mule which can not be longer used in connection with the school. Eather would it be more equitable to say that the trustees should return the mule and the unused-provender, if any, to the seller, who at the time he sold the same was legally chargeable with knowledge, not only
In reaching the conclusion, as we do, that there was no merit in the defense of estoppel interposed by the defendants, we have not overlooked the case of Irvin v. Gregory, 86 Ga. 605, wherein it appeared that a majority of the complainants had voted in favor of the approval of a local school law and all of them had acquiesced in the result of the election until after a school was established and put into operation. The school law was, as the court ruled, a constitutional and valid law, save as to a minor detail which did not affect its validity as a whole. It provided that it should not go into effect until ratified by a two-thirds vote of the qualified voters of a town, and that notice of the election should be published once a week for four weeks. The publication was begun in time, but the notice was inadvertently omitted from the fourth issue of the newspaper, so that the notice appeared only three times. In dealing with this branch of the case, Chief Justice Bleckley recognized that this omission would have been fatal to the validity of the election, if prompt action had been taken by the plaintiffs to prevent the local act from being carried into operation; but he stated that the conclusion of the court was that the failure to publish the notice in strict conformity with the terms of the act was a mere irregularity and could not be taken advantage of by the complainants, when more than two-thirds of the qualified voters responded to the notice given and actually voted for ratification of the act, and the complainants and all others concerned acquiesced in the result of the election and waited till the school was established and put into operation before attempting to restrain the collection of the local, tax authorized to be levied by the act. The difference between that case and the one now in hand is apparent; the ruling in the former was analogized to decisions laying down the principle that irregularities in the holding of an election will not necessarily invalidate it, and may be waived by failure to contest-the election; in the present case, the plaintiffs do not undertake to set aside the elec
What is said above disposes of the controlling questions pre-' sented by the bill of exceptions, and it is unnecessary to deal specifically with each of the assignments of error made, since the-only matter now for decision is whether or not the plaintiffs were-entitled to an interlocutory injunction. Foster v. Case, 126 Ga.. 714. Judgment reversed.