Harrison v. May

Hawes, Justice. Clark Harrison, A. C. Guhl, and five other named individuals, as Chairman and members of the Board of Commissioners of DeKalb County and DeKalb County filed suit against Jack May, George- R. Fellows, and five other named individuals, as chairman, vice chairman and members of the Board of Education of DeKalb County and against Jim Cherry, Superintendent of DeKalb County Schools seeking a declaratory judgment with respect to the rights and responsibilities of the parties arising by virtue of the Act approved February 28, 1956 (Ga. L. 1956, pp. 2764-2765). The Act in question is a population bill applicable "in any county [685] having a population of not less than three hundred thousand (300,000) by the last or any future decennial census of the United States.” It provides, insofar as pertinent to this proceeding with respect to the counties falling within the required population bracket, that: "The Commissioners of Roads and Revenues thereof are hereby directed to pay to the Board of Education thereof, in addition to all other payments directed to be made by the Constitution and laws of this State, from any funds held by or available to the Commissioners of Roads and Revenues thereof and derived from sources other than taxation, the following sums upon demand by the Board of Education thereof, . . .: (d) the sum of thirty thousand ($30,000) dollars per month with respect to each month beginning with July, 1960, and continuing until this provision of this Act is repealed.” It appears from the pleadings and other papers which are a part of the record before this court that this Act was, from its passage and until the 1970 decennial census was taken, applicable only to Fulton County, Georgia; that by the 1970 decennial census DeKalb County came within its operation and on March 1, 1971, the DeKalb County Board of Education by resolution duly passed directed the superintendent of schools to make demand upon the commissioners for the payment of $30,000 per month, as provided under the Act, beginning on the 1st day of February, 1971, and on March 9, 1971, Mr. Cherry wrote to Mr. Harrison making demand in accordance with the procedural requirements of the Act. The county commissioners refused to make the payment demanded, and, on April 12, 1971, brought the present complaint seeking a declaration that the Act in question is unconstitutional because it violates Art. VIII, Sec. XII, Par. I of the Constitution of 1945 as amended (Code Ann. § 2-7501), and also attacking the Act as violating other stated provisions of the Constitution not necessary here to be set forth. The portion of the Constitution above referred to provides: "The fiscal authority of each county shall an [686] nually levy a school tax for the support and maintenance of education, not greater than 20 mills per dollar as certified to it by the County Board of Education, upon the assessed value of all taxable property within the county located outside any independent school system or area school system or area school district therein.” The defendants filed defensive pleadings which embodied therein a cross complaint seeking a mandamus absolute against the plaintiffs to compel the payment of $30,000 per month pursuant to the 1956 Act and the demand made, and also filed interrogatories which they had served upon the plaintiffs. The plaintiffs made a motion for a summary judgment and answered the interrogatories, and thereafter the trial court passed an order adjudging the Act challenged by the plaintiffs to be constitutional, dismissing the prayer for summary judgment and granting the defendants’ prayer for mandamus absolute. A certificate of immediate review was duly filed, and the plaintiffs appealed from that judgment. In 1959, this court had occasion to consider the constitutionality of an ordinance enacted by the ex officio judges and commissioners of Chatham County levying a specific tax for the operation and maintenance of the public schools of the City of Savannah and Chatham County on the occupants of residences, houses and apartment buildings and the occupiers of business establishments, offices, mills, factories, etc. The tax was imposed upon each occupant using the services of a telephone company, electric light and power company and gas company. It was there held: "The method or manner in which the County of Chatham can levy a county-wide tax for the support of public schools in the county and City of Savannah, whether ad valorem or otherwise, is fixed by Art. VIII, Sec. XII, Par. I of the Constitution of 1945 as amended. The tax sought to be imposed in support of public education as contained in the ordinance under attack, not being authorized by the Constitution of 1945, is an illegal and void tax.” Commissioners of Chatham County v. [687] Savannah Electric &c. Co., 215 Ga. 636, 640 (112 SE2d 655). (Emphasis supplied.) The ruling in that case is determinative of the issues in this case. It is true that the Act here in question does not per se levy a tax. But, "any funds held by or available to the commissioners of roads and revenues [of DeKalb County] and derived from sources other than taxation,” which the county commissioners might be authorized to utilize in order to comply with this Act are shown by the plaintiffs’ answer to the defendants’ interrogatories to be either funds already allocated for specific purposes, upon which they would not be authorized to encroach, or are funds derived from fines and forfeitures, fees paid for licenses and the like which are first required to be applied in administering particular programs from which they are derived and the balance thereof, if any remains, is required to be paid into the treasury of the county and deposited with the general funds derived from taxes. Code §§ 23-1016, 89-810. They thus become a part of the general operating funds of the county which must be applied only to those purposes for which the county has authority to spend tax moneys as provided in the Constitution. See Atlanta Chamber of Commerce v. McRae, 174 Ga. 590 (163 SE 701); and Stewart v. Davis, 175 Ga. 545 (1 b) (165 SE 598). Thus, in order to comply with this Act and at the same time meet its budget the county would be required to increase its general tax levy or to encroach upon funds derived from taxes by an amount equal to the sums paid over to the Board of Education, and would thus be doing by indirection the very thing the Constitution in Art. VIII, Sec. XII, Par. I forbids to be done directly. We hold, therefore, that the Act approved February 28, 1956 (Ga. L. 1956, p. 2764), is unconstitutional and void as being in violation of Art. VIII, Sec. XII, Par. I of the 1945 Constitution of the State of Georgia. Under the foregoing ruling, it is unnecessary to consider any of the other attacks made upon the Act. It follows that the trial court erred in denying the plaintiffs’ mo [688] tion for a summary judgment and in granting the defendants’ motion for a mandamus absolute. Argued November 9, 1971 Decided February 11, 1972 Rehearing denied February 28, 1972. George P. Dillard, Robert E. Mozley, Herbert 0. Edwards, for appellants. Murphy Candler, Jr., Gary M. Sams, for appellees. Judgment reversed. All the Justices concur, except Gunter, J., who dissents.