Almand v. Board of Education

131 S.E. 897, 161 Ga. 911, 1926 Ga. LEXIS 362

• Court: Supreme Court of Georgia
• Decided: February 24, 1926
• Docket: No. 4783
• Status: Published

Opinion

Hines, J.

(After stating the foregoing facts.) In the City of Dublin there is a lawfully established independent school system. This independent school system embraces all the territory and all taxable property within the municipal limits. The county commissioners of Laurens County, on the recommendation of the county board of education, levied a tax for 1924: “County-wide for vocational high schools in consolidated schools, vocational, agricultural, and domestic science, and art, 2-1/2 mills.” This tax is being enforced against all the taxable property within the city limits of Dublin. The plaintiffs, who own property within the city limits of Dublin, filed their petition to enjoin the collection of this tax on their said property, upon three grounds. The first ground of their attack upon this tax levy is, that it will produce a revenue of $24,000, while the sum of $5,000 only is necessary for the purpose for which this tax was levied; and that it is the purpose of the county board of education io use the excess in conducting the common schools of the county. In consequence of this fact the plaintiffs allege that this tax is grossly excessive for the purpose for which it was levied. The second ground of attack on this tax levy is, that the resolution of the county commissioners levying this tax unlawfully imposes a tax upon the property of the plaintiffs in Dublin, if it be held to put a tax upon their property in that city. The third ground of attack is, that “Any resolution or law purporting to authorize such action is illegal and unconstitutional and violative of article 8, section 4, paragraph 1, of the constitution of the State of Georgia, Code 6579.”

We shall deal only with the following questions. The first is whether this tax has been levied upon taxable property within the Dublin independent school district. The second is, if this tax has been so levied, can it be lawfully so levied? The answers to these questions depend upon the proper construction of the resolution of the county commissioners making the levy, and of the act of August 19, 1922, entitled “An act to confer upon the several counties of this State the authority to levy taxes for educational purposes, to provide for the employment and pay of county agents, and home-demonstration agents, to provide for the employment and payment of agricultural teachers and home-economics teachers in the vocational high schools of the State, and for other purposes.” We shall deal with both of these questions together. Was this tax levy lawful? Is there any law of this State which authorizes the several counties of this State to levy a tax upon taxable property within the limits of an independent school sj'stem, for the maintenance of public schools in the county outside of such independent school system? It is insisted that this authority is conferred upon these county authorities under the above act of August 19, 1922. The first section of that act is as follows: “That power is hereby delegated to and conferred upon the several counties of this State to levy and collect taxes for educational purposes, in such amounts as the county authorities shall determine, the same to be appropriated to the use of the county board of education, and the educational work directed by them.” Does this section confer this authority? This involves a proper construction of this act. This statute does not in so many words authorize this levy. It simply authorizes “the several counties of this State to. levy and collect taxes for educational purposes, in such amounts as the county authorities shall determine.” It does not attempt to fix the property upon which said tax can be levied. The grant is “to levy and collect taxes for educational purposes.” It is' a ■familiar 'rule of statutory construction that a statute is never to be construed in a way that will render it unconstitutional, if it will admit of another construction under which it can be constitutionally upheld. Smith v. Evans, 125 Ga. 109, 112 (53 S. E. 589); Griffin v. Sanborn, 127 Ga. 17 (4) (56 S. E. 71); Stewart v. Cartwright, 156 Ga. 192, 197 (118 S. E. 859). This statute is fairly and properly susceptible of a construction that a grant to “the several counties of this State” of the authority “to levy and collect taxes for educational purposes,” means that the levy shall be upon such property as is subject to taxation for the purpose intended. This construction will render the statute constitutional. The construction that the statute confers authority to levy a tax for educational purposes, upon all property situated in the county, would render the act unconstitutional, as will be later shown.

Furthermore, a statute, in so far as it deals with the subject of taxation, is to be interpreted in the light of the fundamental restrictions upon taxation, imposed by the constitution of the State. So it has been held by this court that a general grant of the power of taxation will not authorize a tax upon public property and the various instrumentalities of government. Penick v. Foster, supra. So we have a statute, enacted under constitutional authority, which exempts from taxation places of religious worship, places of burial, all institutions of purely public charity, all buildings erected for and used as a college, incorporated academy, or other seminary of learning, the real and personal estate of any public library, and any other literary association used by or connected with such a library, all books, philosophical apparatus, paintings and statuary of any company or association, kept in a public hall, and not held as merchandise, or for the purpose of sale, gain, or private or corporate profit or income. Civil Code, §§ 998, 6554. So all funds or property held or used as an endowment by colleges, incorporated academies, or seminaries of learning, provided the same is not invested in real estate, if such institutions are open to the general public. 8 Park’s Code Supp. 1933, § 998. It would hardly be held that under this general grant to the several counties to levy and collect taxes for educational purposes, the several counties could levy such a tax upon the properties exempted under the above statute. Besides, to so construe this act would make it violate the amendment to the constitution of this State, ratified. November 2, 1920, which grants to counties of this State authority to establish and maintain public schools within their respective limits by local taxation. This amendment provides: “The proper county authorities whose duty it is to levy taxes for county purposes ill this State shall, on the recommendation of the board of education, assess and collect taxes for the support of public schools under its control, not less than one nor more than five mills on the dollar of all taxable property of the county outside of independent local s3>'stems.;” Acts 1919, p. 66; Park’s Code Supp. 1922, § 6579. By the plain and unambiguous language of this constitutional provision, the several counties of this State can not levy a tax for educational purposes on the taxable property within the limits of an independent school system. Taxation in an independent school district and the funds arising therefrom must be kept separate and distinct from county taxation. Likewise, county taxation and the .proceeds arising therefrom must be kept separate and distinct from taxation in independent schopl systems. Taxes can not be levied on the property subject to taxation in an independent school system, to support country schools outside of such system, any more than taxes can be levied on property subject to taxation, lying outside of such independent school district, to support the schools of the independent school system.

In Clark v. Cline, 123 Ga. 856 (51 S. E. 617), this court said, speaking of the county board of education of Troup County: “But they have no power to unlawfully give to a separate local school system money which does not properly belong to it, nor to misapply public funds arising from taxation.” In Pace v. County Board of Education, 150 Ga. 777 (105 S. E. 366), this court held: “The board of education of a county wherein there exist two separate and independent school districts, one composed of the territory within the corporate limits of a city, the other of all the territory in the county beyond the city limits, can not lawfully appropriate any portion of a fund raised by local taxation in the county district, for the establishment and maintenance of public schools within its limits, in payment to the city district for the tuition of pupils residing in the county district and attending schools of the city district.” So in Board of Education of Wilkes County v. Butler, 154 Ga. 569 (115 S. E. 10), it was decided: “The board of education of a county, in which a system of public schools is supported by local taxation, is without authority to employ one to teach agriculture in the high school of a city maintaining an independent public-school system, and to pay such teacher [out] of the funds belonging to the former system, although students from the country districts, as well as those from the city, are taught by such teacher, and although the city furnishes the class-room and laboratory for conducting such teaching.” But this court has construed the constitutional amendment of 1920. In Smith v. Board of Education of Washington County, supra, this court held: “Under a proper construction of the foregoing provision of the constitution [referring to this amendment], the Board of Education of Washington County is invested with the power and authority to recommend to the Board of Commissioners of Roads and Revenue of said county the levy of a tax not less than one nor more than five mills on the dollar of all taxable property of the county outside of independent local systems, for the support of public schools under its control.” Here the exact point involved in this case was decided; and the decision was by a full bench. A construction of this constitutional provision again came before this court in Glenn v. Trion Co., supra. In that case this court followed the construction put upon this amendment in Smith v. Board of Education of Washington County, supra, and made this ruling: “Giving the language this construction, the entire provision does not confer power on the designated officers to assess and collect the specified tax on property that is located in a duly incorporated town that has lawful authority to establish and conduct an independent local system of public schools and does conduct such system of schools.” Here is a clear and distinct construction of this constitutional amendment. That case can not be distinguished from the ease now in hand. It rules distinctly and unequivocally that a county can not levy a tax on taxable property within the limits of an independent school district, for the support and maintenance of country schools outside of the limits of such district. This principle was again announced in Warthen v. English, supra. But in Hanks v. D’Arcy, supra, this court made a contrary ruling.

So we have one case older than Hanks v. D’Arcy, and two younger than that case, which properly construed this constitutional provision. Besides, the constitutional provision is so plain in this respect that it hardly needs construction. In these circumstances what shall we do? It seems to us clear that we should follow the older case, which has been confirmed and fortified by two later decisions than that in Hanks v. D’Arcy. In Calhoun v. Cawley, 104 Ga. 335 (30 S. E. 773), it was said: “If the decision in Dart v. Orme, 41 Ga. 376, is in conflict with that rendered in the case first mentioned, the older, under our statute, is to be followed as the true law.” In Thomason v. Moore, 139 Ga. 341 (3 a) (77 S. E. 155), this court again announced the same principle. It said: “If this ruling in any manner conflicts with that made in Moultrie Repair Co. v. Hill, 120 Ga. 730 (5), 732 (48 S. E. 143), that ruling must yield to those made in the earlier decisions.” Again, in Holliday v. Price, 146 Ga. 782, 784 (92 S. E. 533), this court announced this doctrine as follows: “There being an irreconcilable conflict between the decision in the Parker case and the Graybill, Beal, and Rachels cases, the latter, being the older, must prevail, according to the rulings of this court.” So when we are met by an irreconcilable conflict between two decisions, the older must prevail, especially when the older case announces the true law. So upon review we overrule the ease of Hanks v. D’Arcy.

The resolution in this case levied a tax “county-wide.” Does this resolution authorize the collection of this tax on taxable property within this independent school district? The meaning of this language was before this court in Smith v. Board of Education of Washington County, supra. In that case this court held that it did not impose a tax upon property lying within the independent school district. The court said: “The motion adopted by the board of education, in which they voted ca county-wide tax of five mills’ for school purposes, must be construed in connection with the constitution and the official notice signed by the president and secretary of the board and served upon the commissioners of roads and revenue, which recited that the tax was levied upon the taxable property of Washington County not included in the corporate limits of the towns of Tennille and Sandersville. The words ca county-wide tax,’ thus construed, amounted to a recommendation to the board of commissioners of roads and revenue that the tax levy was not to include property within the corporate limits of the named municipalities,” which embraced independent school districts. So in this case we resort to the constitution to ascertain the meaning of the words “county-wide,” used in the resolution imposing this tax; and construing it in view of the constitutional provision, we are to say what its meaning is. Applying this rule of construction, the meaning of this resolution is that the tax is levied upon and is to be collected from the taxable property lying outside of the City of Dublin. Judgment reversed.

All the Justices concur.