Smith v. Bohler, 72 Ga. 546

72 Ga. 546 | Ga. | 1884

Jackson, Chief Justice.

A number of tax-payers of Richmond county brought their bill in equity against the board, of education of that county, the tax collector and sheriff thereof, to enjoin the levy of a tax authorized and assessed by the board of education, and on the refusal of the injunction prayed for, by the chancellor, they excepted, and assign for error here that refusal.

1. The board of education was incorporated and organized by an act passed by the general assembly of 1872, on the 23d of August of that year. See acts of 1872, p. 456. The title of the act is “ An Act to regulate public instruction in the county of Richmond.'” By the 16th section thereof, this board was authorized to “ levy such tax as they may deem necessary for public school purposes;” and the first point made by the plaintiffs in error is, that the general assembly had no authority to confer the taxing power upon this board. The general assembly of that year were acting under the constitution of 1868, then of force. By that constitution, Art. 1, Section 28, “ the general assembly may grant the power of taxation to the county authorities or municipal corporations, to be exercised within their several territorial limits.” Therefore, if the board of education be one of the county authorities of Richmond county, the legislature of 1872, acting under the constitution of. 1868, did have the constitutional authority or power to grant to this board the power to tax for this purpose.

Was it a county authority? We think it one of the most important of all the authorities of that county. Education is the corner-stone of a political fabric, especially where that fabric rests on the basis of popular suffrage. Neither roads, court houses nor district subdivisions, or other arrangements for good government, are more vital to society. To regulate the instruction of the children, who are soon to become the fathers and mothers of the land, is a great public trust, second to none, confided to the people’s agents, and those clothed with power to perform such a work in a county constitute a great county authority, the very head of the list of the fiduciary agents of that county which confides such a trust to them.

The inferior court used to be clothed with the power to levy county taxes ; then the ordinaries possessed it; then commissioners of roads and revenues exercised it. Some required the recommendation of grand juries, but all these were county authorities. May not county authorities consist of a different set of officers for different objects ? Why not ? The very fact that the plural—authorities—is used, shows that the general assembly were authorized to organize more than one man, or set of men if they chose, for the business of the county, and thus make a division of trusts and of labor. We think, therefore, that this board of education is as much a county authority in Richmond county as are the commissioners of roads and revenues, or the judge of the county court, or ordinary, or any other officer or set of agents entrusted with other branches of the public service in that county. The framers of the constitution of 1868 had at heart the great matter of general education, and entrusted the general assembly with ample power over the entire subject and the power, among others, to provide therefor by taxation. Art. VI.

2. Is the title, “ To regulate public instruction in the county of Richmond,” broad enough to embrace the power to tax? The teachers must be provided; children cannot be taught without them. To procure their services requires money. To raise the money necessitates the power to reach the pockets of the people. That power is nothing more nor less than the power to tax. So that, to regulate the great interest of public instruction involves and embraces the power to tax. The superintendent of the entire system is its practical regulator. He must be paid. Discipline, government in each school-room, must be confided to some subordinate to regulate the behavior of the children ; and hence there must be a teacher in each school or school-room,.otherwise it will be all play and no study, and nothing will be regulated for the sole object' of the system, to-wit: “ public instruction in the county of Richmond.” To procure these head-regulators of each school, money must be had, and it is sheer nonsense to attempt the regulation without the money to pay the practical regulators. ■ To furnish school-houses and rooms, money is equally essential, for these must be rented or leased, or bought or built; children cannot be taught, or regulated while taught, without places in which to house them. Whence is the money to be got for these necessary purposes of education, if not by taxation ? We are clear, therefore, that the foundation on which the power to reghlate public instruction rests, to-wit, teachers and schoolhouses, is money. It is the only means to the end. Without it the wheels all stop, and the factory, which makes men and women sufficiently strong in texture not to rot out and ruin the political fabric, sooner or later must suspend work in Richmond county; and the board of education will become wholly impotent to regulate public instruction, because there will be none for them to regulate.

3. It follows, from these considerations, that there are not two subject-matters in the act. If it be necessary to have money to regulate public instruction, then the mode of getting the money wherewith to regulate it is of the very essence of the power to regulate. It is more than germane to it. It is its life-blood, the most important part of its own physique; that which alone keeps it alive, without which neither foot nor hand nor head nor' tongue could perform its function.

Therefore, the subject-matter of raising the money is not a subject-matter, in the sense of the constitution, different from the subject-matter of the regulation of public instruction, and there are not two subject-matters in the act of 1872. Hope et al. vs. Mayor and Council of Gainesville, this term.

4. The mode of assessment was a substantial compliance with the 16th section of the act of 1872. It was based on the returns of the tax receiver of the county, and it assessed on property, as therein returned, the per cent laid by the board. It seems to have been a legitimate and fair mode of making out, with least expense to the tax-payers, an assessment and return of the tax which the action of the board, in fixing the per cent, authorized. It seems strange that equity should be invoked to enjoin the collection of the tax at the suit of tax-payers, when the mode adopted followed that used by the state, was based upon it, and thus saved the expense of paying for services equal to those of a tax receiver. The county commissioner could hardly pursue any other course and discharge the other duties devolving upon him, and this is another reason why we think the mode pursued by him, or some such mode, was that contemplated by the act of 1872.

5. The time of the assessment—August, 1883—is objected to, on the ground that it was not the month of January, uor as soon thereafter as practicable.” That is matter for the judgment of the board of education, and we do not see from the record how the delay hurt anybody so badly ás to require the strong arm of an injunction to furnish a remedy for the wound. Perhaps the board waited to see what the taxable property of Richmond county would be in all, in order to lay such a per cent as would pay the expenses of education. If so, it wras a capital good reason, and tax-payers should not complain, inasmuch as their interest was to have the per cent as little as possible.

6. So in regard to the charge that the tax is excessive ; the power to fix the amount necessary is vested' in the board. A court of equity would not interfere, unless it; was made very plain that the tax was excessive. The facts disclosed in this record do not make such a case.

7. It is objected, too, that the board consisted, in part, of persons not free-holders, but they were all defacto in office, and competent to act until ejected. 63 Ga., 207, 527 ; 20 Id., 716 ; Code, §129 , et seq., 3764.

8. The tax collector’s bond binds him for this, as for Other county taxes. Its small amount surely will not authorize tax-payers to refuse to pay county taxes. Let them send members to the legislature who will have it increased.

9. Surely the exception that Judge Pottle, in his very able and learned opinion, used language which did not please the ear of counsel for the plaintiffs in error, was not seriously made one of the exceptions to his judgment, and urged as a reason to reverse it.

The questions relied on with propriety by the able and' learned counsel for plaintiffs in error, are the constitutional points first considered. The others, we suppose, were hurriedly thrown in, many of them, as ballast or make-weight. On those constitutional questions, it may be well to add that, so far as general provisions of the fconstitution of 1877 may be argued to affect the system of education in Richmond county, that constitution itself provides a complete answer. The first paragraph of the fifth section of the eighth article of that constitution deblares ; “Existing local school systems shall not be affected by this constitution.” Code, §5208.

Judgment affirmed.

See cited for plaintiffs in error: 4 Ga., 38 ; 30 Id., 679 ; 49 Id., 238 ; 12 Id., 36 ; 59 Id., 364 ; 29 Id., 158 ; 51 Id, 573 ; 52 Mo., 20 ; Cooley, 577-8 ; 12 Barb., 559 ; 15 Mich., 54 ; 9 Wheat., 196 ; 8 Heisk., 857 ; 1 Lea, 546 ; 2 Met., 350 ; 51 Ill., 130 ; 33 N. H., 424 ; Potter’s Dwarris, 420, 337 ; Cooley Tax, 52 n ; 2 Dillon Mun. Corp., 746 ; Burroughs, 74, 76 ; Suppl., 2-7 ; Field on Corp., 295; The State vs. McLain, 71 Ga., 279 ; R. M. C. R., 26 ; 96 U. S., 104 ; 60 Ga., 138 ; 64 Id., 286, 498 ; 67 Id., 293 ; 27 Id., 354 ; Cooly on Tax, 210 ; 3 Greenleaf (Me.), 191 ; 18 Q., 161 ; 12 Barb., 559 ; Cooly’s Con. Lim., 195, note 2 ; 27 Pa. St., 339 ; 19 Id., 324 ; 16 Mich., 12 ; 20 Wal., 655 ; 3 Id., 664 ; 40 Cal., 225 ; 4 Wheat., 30 ; 100 U. S., 545 ; 104 Id., 613 ; 74 N. C., 707 72 Id., 10 ; 52 Mo., 336 ; 30 Ala., 461

For defendant: 9 Ga., 253 ; 43 Id., 554 ; 54 Id., 664 ; 66 Id., 226 ; Wellborn vs. Estes, 70 Ga., 390 ; 7 Ga., 460 ; 9 Id., 142, 592, 252 ; 8 Id., 316 ; 44 Id., 78 ; Howell vs. State, 71 Ga., 224 ; 58 Id., 512 ; 33 Id., 332 ; 52 Id., 223 ; 63 Id., 207 ; 20 Id., 746 ; 44 Id., 454 ; 41 Id., 331; 63 Id., 527 ; Churchill vs. Walker, 68 Ga., 681 ; McLain vs. State, 71 Ga., 279 ; 63 Ga., 736 ; 49 Id., 232 ; 57 Id., 370 ; Code 129 et seq., 69, 147, 3203, 934, 886 ; Code of 1873, §§5062, 5112 ; 1 Am. R., 399 ; 8 Id., 602 ; 9 Id., 578 ; 37 Id., 456 ; 34 Id., 151, 737 ; 46 Id., 100, 456 ; 25 Id., 235 ; 37 Id., 454, 564 ; 30 Id., 168, 246, 548 ; 29 Id., 212, 267 ; 10 Id., 35 ; 6 Am. D., 62 ; 19 Id., 63 ; 32 Id., 243 ; 21 Id, 199, 213 ; 8 Wheat., 570 ; 104 U. S., 604 ; 4 Wheat., 316, 518 ; 9 Wall., 1 ; Acts of 1877, p. 347 ; of 1870, p. 57 ; of 1874, p. 109 ; of 1871-2, pp. 13 and 279 ; of 1873, p. 64 ; of 1878-9, p. 20 ; of 1874, pp.30, 101 ; of 1880-1, pp. 36, 40 ; of 1872 462 ; 2 Dillon Mun. Corp.. 745, 747.