Opinion
16617, 16673.
MAY 11, 1949.
Equitable petition. Before Judge Mundy. Paulding Superior Court. February 14, 1949.
Boykin Boykin, Robert D. Tisinger, and W. L. Denton, for plaintiffs.
Hutchens Foster, Spalding, Sibley, Troutman Kelley, and C. B. McGarity, for defendants.
1. By section 20 of the act of 1946 (Ga. L. 1946, p. 206), county boards of education are vested with all of the rights, powers and duties, formerly vested in local trustees, and accordingly, the allegations and prayers of the petition, which were based on the insistence that the local trustees were entitled to have the funds in question delivered to them for the purpose of building a schoolhouse, were subject to special demurrer.
2. Where a statute is challenged as a whole, the attack will necessarily fail unless the statute is invalid in every part for some reason alleged; and the amendment, the striking of which is complained of, was subject to special demurrer since it failed to show that the statute was invalid in every part.
3. The evidence was sufficient to authorize the judgment that was rendered without the intervention of a jury, and the court did not err in overruling the petitioners' motion for new trial as amended.
4. The cross-bill of exceptions filed by the defendants on March 8, 1949, assigning error on a portion of a judgment that was rendered on November 1, 1948, to which judgment the defendants did not file a motion for new trial or any exceptions pendente lite, but to which judgment the petitioners filed a bill of exceptions, which was served on the defendants on February 16, 1949, based on the refusal of the court to grant a new trial, presents no question for decision.
Nos. 16617, 16673. May 11, 1949.
The original pleadings in this case are fully set forth in Board of Education of Paulding County v. Gray, 203 Ga. 583 ( 47 S.E.2d 508), and need not here be repeated. The petitioners filed an equitable suit against the Board of Education of Paulding County, and the individual members thereof, seeking an injunction and other relief with reference to the sale of bonds of the Camp Ground Consolidated School District. General and special demurrers were interposed by the defendants to the petition. The trial court overruled the defendants' general demurrer. Certain grounds of their special demurrer were overruled and other special grounds were sustained. Exceptions pendente lite were filed by the petitioners, assigning error in so far as the judgment sustained the defendants' grounds of special demurrer. The defendants in a direct bill of exceptions assigned error on the judgment overruling their general demurrer. In affirming the judgment overruling the general demurrer to the petition this court held: "1. A petition which states a cause of action for any of the relief prayed should not be dismissed on general demurrer. 2. Where the county board of education, pursuant to an act of the General Assembly approved February 1, 1946 (Ga. L. 1946, p. 206), received from an abolished local school district funds which had been derived from a sale of bonds voted for the purpose of building, repairing, and equipping a schoolhouse in that district, it can lawfully use the funds for no other purpose."
After the remittitur of this court was made the judgment of the trial court, the petitioners amended their original petition by alleging substantially the following: The bonds voted in this matter were governed by the Constitution of 1877, being voted under the Constitution and law pertaining thereto and were duly validated accordingly; therefore, the acts of the General Assembly of 1946 and 1947, being subsequent acts of the General Assembly under the Constitution of 1877, would not be applicable, and the said bonds would not be affected by said acts of the General Assembly of 1946 and 1947, in that said acts would be retroactive in character and violative of article 1, section 3, paragraph 2, of the Constitution (Code § 2-302), and violative of article 1, section 9, of the Constitution of the United States (Code, § 1-128); therefore, the petitioners are entitled to have said bond money turned over to the Trustees of Camp Ground Consolidated School District for the purpose of erecting and equipping a schoolhouse, the purpose for which said bonds were voted and issued. The amendment prayed that an order be so framed as will grant petitioners such relief, directing said bond money to be turned over to the Trustees of said School District.
The defendants demurred to the amendment filed by the petitioners, and moved to strike the same, on the ground that, as a matter of fact and as a matter of law, the acts of 1946 (Ga. L. 1946, p. 206), do not contravene any part of the State Constitution. The trial court sustained the defendants' demurrer to the amendment, and the petitioners filed exceptions pendente lite to this ruling.
By agreement of the parties the case was heard by the trial court without the intervention of a jury, and after hearing the evidence, together with the pleadings and admissions contained therein, the court decreed that the Board of Education of Paulding County holds said funds in trust for the purpose for which said bonds were voted, to wit, for Camp Ground Consolidated School District; and that the said Board of Education be restrained and permanently enjoined from using or appropriating said funds for any other purpose than building, repairing, and equipping a schoolhouse in and for said Camp Ground Consolidated School District, for which they were voted, as set out in the petition. It was further ordered that Johnson-Lane-Space Company Inc., be discharged from said case, it not appearing that it is liable.
The petitioners' motion for new trial as amended was overruled, and the case comes to this court for review on their exceptions to that judgment. The bill of exceptions also assigned error on their exceptions pendente lite.
The defendants filed a cross-bill of exceptions, assigning error on the portion of the judgment which enjoined the Board of Education of Paulding County from using or appropriating the money derived from the sale of the bonds for any other purpose than building, repairing, and equipping a schoolhouse in and for said Camp Ground Consolidated School District.
1. Section 20 of the act approved February 1, 1946 (Ga. L. 1946, p. 206), 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."
Accordingly, the trial court did not err in sustaining the defendants' special grounds of demurrer and in striking the allegations and the prayers of the petition which were based on the insistence that the individual members of the board of education, together with the defendant, Johnson-Lane-Space Company Inc., were personally liable, and that the local trustees were entitled to have the funds in question delivered to them for the purpose of building a schoolhouse.
2. The amendment to the petition, the striking of which is complained of, alleged that the acts of the General Assembly of 1946 and 1947 were retroactive in character and violative of stated provisions of the State and Federal Constitutions.
A statute is presumed to be valid and constitutional until the contrary appears, and where challenged as a whole, the attack will necessarily fail unless the statute is invalid in every part for some reason alleged. Stegall v. Southwest Georgia Housing Authority, 197 Ga. 571, 584 ( 30 S.E.2d 196); Krasner v. Rutledge, 204 Ga. 380, 383 ( 49 S.E.2d 864).
The act approved February 1, 1946 (Ga. L. 1946, p. 206), as amended by the act approved March 27, 1947 (Ga. L. 1947, p. 1186), which statute is attacked as a whole, confers broad powers upon county boards of education. A reading of the statute discloses that many provisions contained therein could not possibly be subject to the above criticism. Therefore, it not appearing that the statute was invalid in every part for some reason alleged, the trial court did not err in sustaining the defendants' special demurrer and in striking the amendment to the petition.
3. The first, third, fourth, and fifth special grounds of the motion for new trial complain that the court erred in refusing to hold that the petitioners were entitled to have the money from the sale of the bonds turned over to the local school trustees for the purpose of building and equipping a schoolhouse, and in refusing to grant an order restoring the status of the bond money.
The contention that the local trustees are entitled to recover the bond money is controlled adversely to the petitioners by the ruling announced in the first division of this opinion.
The act approved March 27, 1947 (Ga. L. 1947, p. 1173; Code, Ann. Supp., § 87-701a), provides: "The proceeds of any bonds issued by any county, municipality, school district or other political subdivision of this State, or any portion thereof, may from time to time be invested and reinvested by the governing authorities of such county, municipality, school district or political subdivision in the bonds of such county, municipality, school district or other political subdivision, or in the bonds or obligations of the State of Georgia, or of other counties, municipalities and political subdivisions of Georgia or in the bonds or other obligations of the United States or of subsidiary corporations of the Federal Government fully guaranteed by such government, and no other. Such governing authorities so authorized to invest such funds are authorized, in their discretion, to purchase such securities as an investment at either a premium or a discount and to sell such securities at such time and for such price as such governing authorities may deem advisable."
Under the above act, the county board of education did not abuse its discretion in determining that it would be impossible to build a schoolhouse with the amount of bond money on hand, and in therefore using the money to buy the bonds, which have not been canceled but are being held by the First National Bank of Dallas, an agent of the county board of education.
The second, sixth, and seventh special grounds complain that the court erred in refusing to require the county board of education to proceed immediately to use the funds for the purpose for which said bonds were voted, and in refusing to grant full and complete relief in equity.
In Pass v. Pickens, 204 Ga. 629 ( 51 S.E.2d 405), this court said: "The legislature of this State realized that the functioning and accomplishments of the county boards of education would necessitate the exercise of wide powers of discretion, and to this end such discretion has by law been vested in the county boards of education."
Applying the above principle to the pleadings and evidence in the present case, the court did not err in refusing to require the county board of education to proceed immediately to use the funds for the purpose for which said bonds were voted.
The evidence was sufficient to authorize the judgment complained of, and the court did not err in overruling the petitioners' motion for new trial as amended.
4. The judgment by the court without the intervention of a jury was rendered on November 1, 1948, and the petitioners filed a bill of exceptions, based on the refusal to grant a new trial, which was served on the defendants on February 16, 1949. The defendants, having to a large extent won their case, did not file any exceptions pendente lite or make a motion for a new trial. In such circumstances a cross-bill of exceptions filed by the defendants on March 8, 1949, assigning error on the portion of the judgment of November 1, 1948, which enjoined the board of education from using the money derived from the sale of the bonds for any other purpose than building a schoolhouse, though filed within 20 days from the date of service of the main bill of exceptions, presents no question for decision. This is true for the reason that one who files a cross-bill of exceptions is not relieved from the requirements, as to proper and timely exceptions pendente lite, which would have been imposed upon him if he had been the plaintiff in error in a main bill of exceptions. See, in this connection, Code, Ann. Supp., §§ 6-902, 6-904; A. C. Alexander Lumber Co. v. Bagley, 184 Ga. 352 (2) 365 ( 191 S.E. 446); Jeanes v. William Prescott Turpentine Co., 185 Ga. 91 (1) ( 194 S.E. 746); Andrews v. Sanders, 186 Ga. 269 (2) 275 ( 197 S.E. 639); Good v. Good, 205 Ga. 112 (2) ( 52 S.E.2d 610).
Judgment affirmed on both the main and cross-bills of exceptions. All the Justices concur, except Head, J., disqualified.