Opinion
19715.
ARGUED MAY 15, 1957.
DECIDED JUNE 10, 1957.
Petition for cancellation. Before Judge Cobb Presiding. Elbert Superior Court. February 8, 1957.
J. T. Sisk, for plaintiff in error.
Lavender Griffith, Jack T. Griffith, Payne Heard, Woodrow W. Lavender, Robert M. Heard, contra.
The judgment sustaining the general demurrer to the petition in the instant case was not error for any reason assigned.
ARGUED MAY 15, 1957 — DECIDED JUNE 10, 1957.
D. V. Bailey as a citizen and taxpayer of the City of Elberton filed his petition against the City of Elberton and the County Board of Education of Elbert County, Georgia, in two counts. He alleged in substance in count one that on January 4, 1956, an election was held in the City of Elberton to decide the question of the consolidation of the independent school system of the City of Elberton and the merging of the same with the County School System of Elbert County under the provisions of Code § 32-1201 of the Code of Georgia; that the result of the election was in favor of the merger; that about March 1, 1956, the County Board of Education formally took over and began to operate the schools located in the City of Elberton; that the mayor and council in pursuance of a resolution adopted, conveyed to the County Board of Education all of its school properties and facilities, describing the properties thus conveyed; that the value of the property is in excess of $500,000.00; that Ga. L. 1929, pp. 1089-1090, prohibit the City of Elberton from conveying property in excess of $10,000.00 without the sale having been approved by the qualified voters of the city; that no such election was held; that for this reason the conveyance is null and void; that the consideration recited in the deed reads as follows: ". . . for and in consideration of the second party assuming the operation of the school system of the City of Elberton in accordance with the 'Merger Election' held January 4th, 1956 and in pursuance of the provisions of Section 32-1201 to 1203 inclusive and other valuable consideration known between the parties . . ."; that a portion of the property conveyed known as Auditorium-Armory property is not a part of the school property of the City of Elberton, but is a public auditorium.
Count two of the petition alleges substantially that there was no consideration for the deed executed; that the transaction was a donation; that for this reason the conveyance is null and void.
The prayers of the petition were as follows: "2. That the aforesaid deed and conveyance from the City of Elberton to the County Board of Education of Elbert County, Georgia, be cancelled for any or all of the reasons set forth in the petition. 3. That the title to the property described in the petition be adjudged and decreed to be and lie in the City of Elberton. 4. That plaintiff have and recover possession of the property described in the petition for the use and benefit of the City of Elberton. 5. That plaintiff have such other and further relief as may be meet and proper in the premises."
The trial judge sustained a general demurrer and dismissed the petition. The exception here is to that judgment.
The plaintiff in error makes numerous contentions. We consider, however, the controlling question to be whether or not the election held as alleged in the petition had the effect, as a matter of law, of vesting title to the property in question in the County Board of Education of Elbert County. If so, the question of what consideration was expressed in the deed could have no effect, for the reason, if the election did have this effect, no deed was as a matter of law necessary.
This court in Board of Education of Paulding County v. Gray, 203 Ga. 583 ( 47 S.E.2d 508) said: "By the act of 1946, all local school districts in the several counties of this State, except independent school districts, were merged into one school district for each county, thereby substituting such consolidated county school district for the various old local school districts. Nelms v. Stephens County School District, 201 Ga. 274 ( 39 S.E.2d 651). Section 20 of the act of 1946 provides: 'The county board of education of each county shall succeed to and be vested with all of the rights, powers and duties formerly vested in the local or consolidated school district trustees with respect to the building and equipping of schoolhouses in the county.'" Code (Ann.) § 32-909 in express terms gives to the county boards of education complete ownership of county school property with the right to buy and sell same.
This court in Board of Education of Fulton County v. Board of Education of College Park, 147 Ga. 776, 779 ( 95 S.E. 684) said: "Where a municipality is authorized by the General Assembly to create a public-school system coextensive with its corporate limits, a part or all of which territory has theretofore been included within the system of public schools operated by the county, forming a portion of a school district, the municipality succeeds to the control of educational matters and to the title to the real estate held as public-school property within its territory, holding such title, of course, as a statutory trustee or public agent." We see no reason why the above ruling is not controlling in the instant case. The factual situation is the same except there the municipality succeeded to the title to the property and here it is contended that the county succeeds to the title. The only argument presented as to why this case is not controlling is that here the property was owned before the election by an independent school system, and in the above cited case the property was owned by a school district. We see no reason why this should or does make any difference. In both situations, the school authorities owned the property "as a statutory trustee or public agent."
2. It is contended that the conveyances should be declared null and void because the deed conveys property that was not school property. The plaintiff in error attaches to his petition the deed in question, being the only deed of any kind in the record, in which the property claimed to be other than school property is expressly described as school property, even to the extent of naming the particular school using the property. Construing the plaintiff's petition most strongly against him, as we must do, there is no merit in this contention.
3. It is next contended that the independent school system of education was and is a constitutional school system and can not be abolished without amending the Constitution. The constitutional provision upon which the contention is based is Art. 8, Sec. 7 of the Constitution of 1945 (Code, Ann., § 2-7001) which reads as follows: "Authority is hereby granted to municipal corporations to maintain existing independent school systems, and support the same as authorized by special or general law, and such existing systems may add thereto colleges. No independent school system shall hereafter be established." The statutory provisions for the consolidation of independent school systems with county school systems were in existence when this provision of the Constitution was adopted, and were in no way affected or changed by this provision. This provision of the Constitution was clearly intended to do only one thing in so far as independent school systems were concerned, and that was to prohibit the creation of independent systems after the adoption of the Constitution, and to preserve those in existence until consolidated or merged as provided by law.
Applying the above principles of law to the allegations contained in the petition in the instant case, it was not error to sustain the general demurrer and dismiss the petition.
Judgment affirmed. All the Justices concur.