Where a lender bank recovered judgments and executions against a local school district for money which was borrowed and used for the purpose of paying teachers' salaries, and where the Constitution of 1945 subsequently conferred upon the County Board of Education the exclusive control of the local school district, the petition of a surety who had been compelled to pay the executions which were thereupon transferred to him, seeking by mandamus to require the County Board of Education to pay the executions, was not subject to demurrer on the ground that the petition showed that the local school trustees were without authority to borrow the money on which the bank had recovered the judgments.

Nos. 16314, 16341. SEPTEMBER 14, 1948. REHEARING DENIED OCTOBER 13, 1948. George O. Franklin filed in Candler Superior Court, against the Board of Education of Candler County, the individual members thereof, and the County School Superintendent, a petition for mandamus, which as amended alleged substantially the following: On February 17, 1926, Pulaski School District of Candler County borrowed $574.55 from The Farmers Bank of Pulaski, and gave its note therefor due December 15, 1926. On March 15, 1927, the same school district borrowed $1092.65 from the bank, and gave its note therefor due January 1, 1928. Each of the notes was given for money that was loaned for the purpose of paying the salaries of teachers employed in the Pulaski School for the current years 1926 and 1927, and was used solely for that purpose. The amounts borrowed on the notes did not exceed the amounts of local school tax collected on property within the school district during the respective years in which the money was borrowed. The bank closed, and in 1929 A. B. Mobley, *Page 365 Superintendent of Banks, in charge of the payee bank, obtained judgments on the notes in the City Court of Metter against Pulaski School District as principal, and against named individuals, including the petitioner, as sureties. Executions were duly issued upon the judgments, which have been kept in life by entries of nulla bona thereon and recorded on the general execution docket of the county. In the liquidation of the assets of the bank, the executions, together with the notes and judgments on which they are based, were acquired by named persons. On June 23, 1947, the petitioner, as one of the sureties on the executions, paid the amounts due thereon, and the executions, together with the notes and judgments on which they are based, were transferred to him. The Pulaski School District was a political subdivision of the county during 1926 and 1927, when the indebtedness represented by the executions was incurred. During those years, and continuously each year since then, there has been maintained within the district a public school, which has been supported in part by the local district taxes and county-wide school taxes levied and collected for that purpose. Under the provisions of the Constitution of 1945, the fiscal affairs of the school are now under the exclusive control of the County Board of Education. The indebtedness represented by the executions being a school-maintenance debt, payment can be exacted only from funds raised by the levy and collection of a school-maintenance tax, or from maintenance funds apportioned to the county by the State. The petitioner paid the executions under the compulsion of a levy of the same, made on his individual property. See, in this connection, Franklin v. Mobley,73 Ga. App. 245 (36 S.E.2d 173); 202 Ga. 212 (42 S.E.2d 755). He has since made demand upon the Board of Education for reimbursement of the amounts so paid by him, and was informed by the members thereof that they were willing to concede the justice of his demand, but for their future protection they preferred that a judgment be granted by the superior court authorizing payment. The amount of school-maintenance taxes collected or to be collected in Candler County for 1947 is approximately $17,481.42, and the amount of school-maintenance funds apportioned to the county from the State for 1947 is approximately $125,671.55, making a total of approximately $143,152.97, which amount is *Page 366 amply sufficient to pay all necessary costs of operating the schools of the county and in addition thereto make a substantial payment each year on the aforesaid indebtedness to the petitioner. The petitioner is willing that the payments be divided over a period of four or five years. He has no adequate remedy at law, and for that reason brings this suit in equity. The petitioner prayed that a rule nisi be directed to the Board of Education and its members, to show cause why the prayers of the petition should not be granted; that upon the hearing a mandamus absolute issue against the Board of Education and its members, directing them to pay to the petitioner out of the school-maintenance funds coming into their hands or under their control the amounts due on the executions, payment to be made in such instalments as the court may direct; that such other relief be granted to the petitioner as he in law or equity may be entitled to; and that process issue.

The Board of Education interposed demurrers, both general and special, to the petition as amended, and filed an answer. Upon the hearing the trial court sustained one ground of demurrer, as applied to the execution for $574.55, but overruled all other grounds of demurrer, and granted a mandamus absolute requiring the Board of Education to pay the execution for $1092.65, payment to be made out of the school-maintenance fund levied in and for the schools of the county at the rate of $700 a year.

To the portions of the judgment overruling the demurrers and granting a mandamus absolute, as applied to the execution for $1092.65, the defendants excepted in a direct bill of exceptions. The petitioner assigned error in a cross-bill of exceptions to the portions of the judgment sustaining the defendants' demurrers as applied to the execution for $574.55, and limiting the funds out of which payment of the execution for $1092.65 was directed to be made. Under a fair construction of the pleadings, the petitioner was seeking by mandamus to enforce payment of the judgments and the executions based thereon, and the amended petition was not subject to demurrer on the ground that it fails to show *Page 367 whether the petitioner seeks such relief, or to recover on the notes, or for money had and received.

A controlling question is whether the amended petition was subject to demurrer on the ground that it showed the loan represented by the note for $574.55 to have been obtained at a time when the trustees of Pulaski School District had no authority to borrow money; and failed to show the loan represented by the note for $1092.65 to have been obtained under authority of a resolution such as is required by the act of 1926 (Ga. L. Ex. Sess. 1926, p. 38; Code, §§ 32-1132 et seq.).

Counsel for the Board of Education insist that in an application for mandamus a judgment is not res judicata of the validity of a claim to be paid from tax funds. In support of this insistence, several cases are cited involving mandamus proceedings where judgments had been recovered against counties upon demands which the county authorities were without constitutional power to discharge by the levy of a tax. InBrunson v. Caskie, 127 Ga. 501 (56 S.E. 621, 9 L.R.A. (N.S.) 1002), a judgment had been recovered against a county for injuries sustained because of a defective condition of a public road, there being at that time no statute which expressly or impliedly made a county liable for such injuries. In Board ofEducation of Polk County v. Hackney, 161 Ga. 637 (131 S.E. 358), there was a judgment based on an alleged debt for services rendered by a licensed teacher in the school district under employment by the trustees, where the county board of education (which board had the exclusive power of employing teachers) did not employ the teacher, or ratify his employment, and was not a party to the judgment. The case of Wrightsville ConsolidatedSchool District v. Selig Co., 195 Ga. 408 (24 S.E.2d 306), involved the use of mandamus to require the levy of a tax for the purpose of paying a judgment against local district trustees, where it did not appear that the claim on which the judgment was obtained was one for the payment of which a local tax could be lawfully collected. In each of those cases it was held that the court could go behind the judgment to ascertain if the liability of the county was such that it could legally levy a tax to discharge it. However, it was expressly stated inBrunson v. Caskie, supra, that the court could not go behind the judgment for the purpose of examining into the validity of the claim. *Page 368

In Baggerly v. Bainbridge State Bank, 160 Ga. 556 (128 S.E. 766), decided prior to the passage of the act of 1926, this court held: "1. The trustees of local school districts are not authorized by law to borrow money for defraying the expenses of operating schools in such districts, and no action will lie upon notes given by such trustees to a bank for money borrowed to maintain and operate a school in a local school district. 2. But where money borrowed by the trustees of a school district was used in defraying the lawful current expenses of operating a school in such district for the year 1924, to the payment of which expenses school funds of the district for that year, derived from taxes and otherwise, could be legally applied, the lender of such money would be subrogated to the rights of the holders of such lawful liabilities against the trustees of the district which were paid out of the proceeds of the illegal loans; and an action for money had and received could be maintained by the bank which had loaned the money to the trustees, which money had been used by them to discharge legally incurred liabilities for such current expenses, although the trustees of the district had no authority to borrow the money or to give a note therefor in their official capacities." This decision was quoted with approval in Kite Consolidated SchoolDistrict v. Clark, 171 Ga. 650 (156 S.E. 618).

Applying the above legal principles to the facts of the present case, if while the suit by the bank against the Pulaski School District was pending before judgment in 1929 the trustees had set up as a defense that they were not authorized to borrow the $574.55 prior to the passage of the act of 1926, supra, or that in borrowing the $1092.65 they did not comply with the act of 1926, the bank which had loaned the money to the trustees could have amended its petition by asking for a judgment for money had and received. The defenses here set up went merely to the validity of the claim, and the judgments that had been recovered were not upon demands which the county authorities were without constitutional power to discharge by the levy of a tax. After judgment, except in cases of the character above indicated, the door is shut to any defenses which relate merely to the validity of the claim. The claims upon which judgments had been recovered in the present case were maintenance debts, alleged to have been incurred by borrowing money to pay teachers' salaries for the current years 1926 and 1927, which money was used for that *Page 369 purpose and no other. The amounts borrowed on the notes did not exceed the amounts of local school tax collected on property within the school district during the respective years in which the money was borrowed. These essential facts being alleged, the court will not go behind the judgments to inquire into the validity of the claims.

Article 8, section 5, paragraph 1 of the Constitution of 1945 (Code, Ann. Supp., § 2-6801) confers upon the county board of education the exclusive control and management of the schools and the assets and sources of revenue for support thereof. By necessary implication the board is charged with the duty of paying the debts of the school districts, for necessary expenses, whose sources of revenue have thus been taken under control.

Under the pleadings and evidence, the petitioner was entitled to a mandamus absolute requiring the Board of Education to pay both of the executions. Accordingly, the trial, court did not err in overruling the portion of the demurrer that was directed against the execution for $1092.65, as complained of in the main bill of exceptions, and in granting a mandamus absolute requiring the payment of that execution.

The court erred, as complained of in the cross-bill of exceptions, in sustaining the portion of the demurrer that was directed against the execution for $574.55.

When the Pulaski School District borrowed the $1092.65 from the bank on March 15, 1927, the Code, § 32-1135, limited repayment of such a loan by declaring that "the same shall be paid back out of any funds coming into the hands of said board of trustees from local district tax collected on property within said district." This law became a part of the contract, and the trial court did not err, against the petitioner for mandamus, as complained of in the cross-bill of exceptions, in requiring payment of the execution for $1092.65 to be made out of the school-maintenance fund levied in and for the schools of the county. The fact that Code § 32-1135 was subsequently repealed by the act of 1946 (Ga. L. 1946, pp. 206, 213) does not require a different result.

Judgment affirmed on the main bill of exceptions. Judgmentaffirmed in part, and reversed in part on the cross-bill ofexceptions. All the Justices concur, except Bell, J., absent onaccount of illness. *Page 370