Page v. Sansom

Bell, Justice. 1. By an amendment proposed in 1931 and ratified in 1932, the constitution of this State was made to contain the following provision: “Authority is hereby given to two or more local school districts, any one or more of which may have incurred a bonded indebtedness, to consolidate upon the condition that such bonded indebtedness outstanding shall be assumed by the entire district as consolidated; provided, however, before such consolidation shall become effective, the same shall be approved by the vote of two thirds of the qualified voters of each district affected, at separate elections held for that purpose on the recommendations of the respective boards of trustees.” Code, § 2-6901 (Acts 1931, pp. 103, 105, ratified November 8, 1932). 2. While, except for the amendment to the constitution as quoted above, the petition might have been sufficient to state a cause of action, under the rulings in Perry v. Baggett, 164 Ga. 143 (137 S. E. 766), Towns v. Workmore Public School District, 166 Ga. 393 (142 S. E. 877), Barber v. Cummings, 167 Ga. 289 (145 S. E. 443), and Register v. Colter, 171 Ga. 439 (155 S. E. 767), those decisions were rendered before the adoption of the amendment, and therefore are not controlling in the present case. 3. The executions which the plaintiffs sought to enjoin were presumably proceeding lawfully, and the plaintiffs had the burden of showing the contrary. Hilton v. Singletary, 107 Ga. 821 (3) (33 S. E. 715); Thompson v. Selcer, 142 Ga. 809, 812 (83 S. E. 965); Wright v. Southern Ry. Co., 146 Ga. 581 (7) (91 S. E. 681); Blalock v. Adams, 154 Ga. 326 (3) (114 S. E. 345). 4. With the exception of mere conclusions of law as to the illegality of the consolidation, the petition contained nothing to indicate that the school districts were not consolidated in conformity to the foregoing constitutional provision; and thus it was fatally defective as failing to show any reason why the plaintiffs’ [627] property respectively should not bear its pro rata part of the bonded indebtedness, so far as the matter of consolidation is concerned. Whitehurst v. Jones, 117 Ga. 803 (45 S. E. 49); Jones v. Ezell, 134 Ga. 553 (68 S. E. 303); Witherow v. Board of Drainage Com., 155 Ga. 476 (5) (117 S. E. 329); 49 C. J. 46, 62, §§ 18, 40. The present case differs on its facts from Scarborough v. Houston, 179 Ga. 194 (175 S. E. 491), where the petition alleged specific facts showing that such constitutional provision was not complied with; and from Campbell v. Burton, 182 Ga. 354 (2) (185 S. E. 323), where the tax was not levied to pay a bonded indebtedness. 5. The fact, that the funds derived from the sale of the bonds may have been improperly xrsed by the trustees does not relieve the taxpayers from liability to the innocent bondholders. Code, § 87-305; Dumas v. Rigdon, 151 Ga. 267 (106 S. E. 261). 6. Whether or not the petition otherwise stated cause for an accounting from the trustees, the plaintiffs were not entitled to such relief without making the trustees parties defendant. Wyche v. Green, 32 Ga. 341; Roberts v. Moore, 136 Ga. 790 (3) (72 S. E. 239); Isom v. Nutting, 153 Ga. 682 (113 S. E. 197); Cowan v. Nicholson, 158 Ga. 425 (123 S. E. 681); Swann v. Wright, 176 Ga. 372 (168 S. E. 11). 7. The foregoing rulings dispose of all contentions made in this court by the plaintiffs. The judgment sustaining the demurrer and dismissing the petition was not erroneous for any reason urged. Judgment affirmed. All the Justices concur.