Edalgo v. Southern Railway Co.

58 S.E. 846, 129 Ga. 258, 1907 Ga. LEXIS 349

• Court: Supreme Court of Georgia
• Decided: August 13, 1907
• Status: Published

Opinion

Cobb, P. J.

(After stating the facts.)

1. The Jenkinsburg school-district act was approved August 22, 1905, which was one day before the general act for the laying out of school districts was approved, and hence it can not be said to be a special law in a case where provision had been made by an existing general law, so far as that general law is concerned. But there was, on August 22, 1905, a general law which made provision for the subject-matter dealt with by the Jenkinsburg act. That general law is contained in the Political Code, §§1335 et seq. It is there declared that each and every county shall compose one school district. The ease, on its face, is .therefore squarely within the ruling in Sellers v. Cox, 127 Ga. 246. But this point is not made with sufficient certainty in the petition for us to rest the case on that ruling. The petition avers that the local school act is a special law in a case where provision has been made by an existing general law, but it does not specify the general school law in the code as that law. This was indispensable to raise the constitutional question. Sayer v. Brown, 119 Ga. 539 (5), 46 S. E. 649.

2. The constitution of 1877 contained the‘following provision: '“Authority may he granted to counties upon the recommendation of two grand juries, and to municipal corporations upon the recommendation of the corporate authority, to establish and main-tain public schools in their respective' limits, by local taxation; but no such local laws shall take effect until the same shall have been submitted to a vote of the qualified voters in each county or municipal corporation, and approved by a two-thirds vote of persons qualified to vote at such election; and the General Assembly may prescribe who shall vote on such question.” Civil Code, §5909. This provision clearly limited local school districts, so far as the taxing power was concerned, to two classes, — counties and- municipalities. The General Assembly had no authority to create other school districts and confer upon them taxing power. Barber v. Alexander, 120 Ga. 30 (47 S. E. 580). The constitutional provision above quoted was, in 1903, so amended as to read as follows: “Authority may be granted to counties, militia districts, school districts, and to municipal corporations, -upon the recommendation of the corporate authority, to establish and maintain public schools in their respective limits by local taxation; but no such laws shall take effect until the same shall have been submitted to a vote of the qualified voters in each county, militia district, school district, or municipal corporation, and approved by two-thirds majority of persons voting at such election, and the General Assembly may prescribe who shall vote on such questions.” This amendment adds two new classes of school districts, — militia ■districts and school districts. The first are well-known and well-defined political divisions of the State. They are subdivisions of a county. Every militia district is wholly in one county. A militia district partly in two or more counties is unknown to law, and would be an impossibility under our present system of political division. The school district is a new creation. It is an innovation. How must it be classified; as belonging to political divisions such as counties and militia districts, or with municipalities ? A municipality may be located in two or more counties j but whenever this has happened, confusion and inconvenience have inevitably resulted. It is to be noted that in the enumeration school districts follow counties and militia districts and precede municipal corporations. Is it not more reasonable that the people intended that their new political division, school districts, should. be of the nature of the militia districts, that is, wholly within the limits of one county, than that they should take on the characteristics of the municipal corporation and be subject to all the confusion and inconvenience necessarily attending a political division rent asunder by a county line? It is by no means free from serious doubt that a school district can be laid out so as to embrace territory situated in two or more counties. But we will not rule the present case on this point, and our utterances on this-subject are merely to call attention to the grave doubts that arise as to the power of the General Assembly to create school districts the territory of which is located in different counties. It is to be noted that the general local-tax school act of 1905 had a provision for such school districts, but this clause was stricken by the amending act of 1906. The constitution declares: “There shall be a thorough system of common schools for the education of children in the elementary branches of an English education only, as nearly uniform as practicable, the expenses of which shall be provided for by taxation, or otherwise. The school shall be free to-all children of the- State, but separate schools shall be provided for' the white and colored races.” .Civil Code, §5906. The uniformity required is that which is practicable, taking into consideration the object to be accomplished, that the instrumentalities are to be provided in local subdivisions of the State, and also the exception of existing local systems from the new scheme. While absolute uniformity is impracticable, and this the constitution recognizes, still that uniformity is the constitutional desideratum must not be lost sight of, and an utter disregard of all effort at uniformity will not be tolerated. The general act of 1905, as amended by the act of 1906, provides a system where the school district is recognized as 'merely a subdivision of the ■ county. No school district, located partly in two or more counties, is contemplated. Local school systems in municipalities are recognized and provision is made for the enlargement of the territory of municipalities for school purposes as well as the management of such systems. The act authorizes local taxation for school purposes in three political subdivisions of the State, — counties, school districts created within a given county, and municipalities. The municipality is left where it always has been, — -political subdivision of the State, whose extent and limits are determined by its charter or laws amendatory thereof, either general or special in their nature. The location of the municipality as to county lines is 'immaterial. It may be in one county only. It may be in two or more counties. But as a municipality of whatever grade or--class, no matter where located, it is entitled to the rights of local taxation for school purposes upon compliance with the constitution and the laws. The school district, under the uniform plan called for by the act, must be a subdivision of a county. The act as amended was intended to be exhaustive, and there is no exception stated therein as to school districts such as are not wholly situated within one of the counties of this State. The act declares: “That within thirty days after the passage of this act, or as soon thereafter as practicable, it shall be the duty of the county board of education of each county in Georgia to lay off the county into school districts, the lines of which shall be clearly and positively defined by boundaries, such as creeks, public roads, land-lots, district-lines, or county-lines.” Acts of 1906, p. 66. If this language is not broad enough to clearly indicate a legislative intent to abolish all school districts other than those provided for in the act, all doubts as to such intent vanish when we consider the following language which appears in the' same section of the act: “The county board of education, in laying off the county, shall disregard any school districts embracing territory not included in incorporated towns heretofore created by special act of the legislature.” Was the local act creating the Jenkinsburg school district repealed by the later general act? Bepeals by implication. are not favored. It has been by some doubted whether there could be such a repeal under the present constitution. Montgomery v. Board, 74 Ga. 42-4. But it .is now settled that there can be a repeal by implication. However, before such a repeal will result, the later statute must be clearly repugnant to a former statute and so irresistibly inconsistent therewith that the, two can not stand together; or it must be clear, from the terms of the later stdtute, that there was a legislative intent to cover the subject-matter of the former statute and have the later statute operate as a substitute therefor. The intention to repeal must be clear and unmistakable. Johnson v. Sou. Ass’n, 97 Ga. 622 (25 S. E. 358). Ordinarily a general law will not have the effect to repeal a prior local law, unless the local law be specially named or necessarily embraced in the terms used in the general law; still, where the legislative intent to repeal is clear and manifest, a repeal of the local law will result. Pausch v. Guerrard, 67 Ga. 219. See also Crovatt v. Mason, 101 Ga. 252 (28 S. E. 891); Western & Atlantic R. Co. v. Atlanta, 118 Ga. 554 (38 S. E. 996, 54 L. R. A. 294.) A repeal of a prior local law by a subsequent general law will not result from mere implication. But such, a repeal always results when the legislative intent to repeal is clear and manifest. There can be no doubt that the General Assembly intended the act of 1905, as amended by the act of 1906, to be exhaustive of the subject of- the creation and location of school districts, and that all school districts embracing territory not included within the limits of municipalities created prior thereto should be abolished. The Jenkinsburg school district, while embracing the territory of the incorporated town of J enkinsburg, ignored the municipality, and not only embraced territory not included therein, but actually extended into another county. Such, a school district has no right to live under the provisions of the subsequent general law. The Jenkinsburg school district act was repealed by the general law of later date.

3. It is contended, however, that no repeal of the local act was effected, for the reason that the general law was itself invalid. It is said that the general act of 1905 was void, and hence the amending act of 1906 is also void, for the reason that there was, no law of which it was amendatory. The general act of 1905 dealt with one subject-matter, — local taxation for school purposes. 'Two phases of this subject-matter were attempted to be dealt with, —-local taxation by counties and local taxation by school districts. That portion relating to taxation by counties was held to be complete and operative. Georgia R. Co. v. Hutchinson, 125 Ga. 762 (54 S. E. 725). That portion relating to local taxation by school ■districts was held to be inoperative. Brown v. Sou. Ry. Co., 125 Ga. 772 (54 S. E. 729). The entire act was not held to be void. It was therefore competent for the General Assembly to amend ihe act by relieving it of the infirmity which affected only one portion thereof, and thus by amendment complete the scheme attempted in the original act. It is true that the title of the amending act, in reciting the title of the original act, inserted the words “districts or,”-preceding the word “counties,” but the title of the original act is correctly quoted in the body of the ■amending act, and the act of which it is amendatory is so dearly shown in other ways that this error in the title will not affect the validity of the amending act.

4. It remains now ,to consider the numerous objections raised to the validity of the general act. The defects in the original act, so far as it related to the school districts, which were pointed out in the case of Brown v. Railway Co., supra, were cured by the amending act of 1906. The school district system is therefore to date from the passage of that act. If it was a valid act, the prior local act creating the Jenkinsburg school district was .repealed. The act amending the general act and the local act were approved on the same day, — August 21, 1906. Eor the purposes of’this case it is not necessary to determine whether there is ■any presumption as to which first took effect. If the amendatory local act was first approved, it was immediately repealed by the •subsequent general act. If the general act was first approved, the amendatory local act dealt with a subject covered by an existing .general law. The objections raised to the original general act need not now be considered, unless the defects therein pointed out -.also appear in the amended act. It is the act as amended that is now the law, no matter what may have been the defects in the original act from which it sprang. It is alleged .that the general act is void, because it contains matter not indicated in the title. "What is such matter not being pointed out, no question is presented for decision by this assignment of error, The objection to the act, that it violates that portion of the constitution (Civil Code, §5779) which declares that no law or section of the code shall be repealed or amended unless the act making such amendment or effecting such repeal distinctly describes the act to be amended or repealed. This provision of the constitution has reference to repeals and amendments expressly made, and has no application to repeals by implication. Swift v. Van Dyke, 98 Ga. 725 (26 S. E. 59). The uniformity rule of the constitution in reference to taxation and the collection of taxes is not infringed by the act merely for the reason that the scheme of taxation as to amount and method of collection is different when taxes are-levied and collected for district schools from what it is when collected for county schools. The constitution declares that the public schools shall be free to all the children of this State. When a system is provided where any child may be admitted free to a school in the territory where such child is domiciled, the mandate of the constitution is satisfied. If a child desires to enter a school in any other territory, it is permissible to charge such child tuition for the privilege. The right of the school authorities to charge tuition for children who are non-residents of the territory where the school is located has never been and can not be seriously doubted. Irvin v. Gregory, 86 Ga. 605 (13 S. E. 120).

There are a number of other objections made to the general act, such as, that school districts can be made up of municipalities- and adjacent territory without an election on the subject of taxation; that the school system antedating the constitution is to bn affected; that donations and gratuities are granted to chartered schools; that sectarian schools are allowed to participate in the public-school fund; that the provision for the removal of school trustees violates the provision of thé constitution vesting the sole power of impeachment in the Senate, as' well as section 291 of the Penal Code, providing for the indictment of certain officers; and that the act does not operate uniformly over the entire State. These and other objections have been made to the general act, and insisted on in the brief of counsel; and we call attention to them simply to show that they have been under consideration and have been found untenable. We do not consider any of the objections urged against the general act of 1905, as amended by the act of' 1906, well taken. The general act is a valid law of uniform. operation throughout the State, and had the effect to repeal all laws, general and special, which are so inconsistent with it that the prior laws and the new law can not stand together. Such is the. case with the Jenlrinsburg school-district act, and it was therefore repealed. The word “now,” in the second line of the fourth section of the amended act of 1906, as that section appears in the recital of the act of 1905 as amended in the act of 1906, p. 69, is manifestly a clerical error. The word “not” appears in the third section of the act of 1905. Acts 1905, p. 427. The act of 1906 provides for striking out the third section of the act of 1905, and substituting a section “to be numbered 4,” which contains the word “not.” Acts 1906, p. 63.

Judgment affirmed.

All the Justices concur.