PAGE et al. v. SANSOM, tax-collector

Supreme Court of Georgia1937-06-21No. No. 11883

184 Ga. 623

Summary · law.co

Holding. The judgment sustaining the demurrer and dismissing the petition was affirmed because the plaintiffs failed to allege specific facts demonstrating noncompliance with the constitutional consolidation requirements or any other valid ground to enjoin the tax executions.

The plaintiffs sought to enjoin tax executions against their property, arguing that a school district consolidation was illegal and therefore they should not be liable for the consolidated district's bonded debt. The plaintiffs' petition, however, contained only legal conclusions of illegality without alleging specific facts demonstrating that the consolidation failed to comply with the state constitutional provision governing such consolidations. The constitutional amendment required approval by a two-thirds vote of qualified voters in each affected district at separate elections held upon the recommendation of each board of trustees before consolidation could become effective.

The court found the petition fatally defective because it failed to allege facts showing either that the consolidation procedures were not followed or that the plaintiffs' property should not bear its proportional share of the bonded indebtedness. The court also rejected the argument that misuse of bond proceeds by trustees would relieve taxpayers from their obligation to innocent bondholders. Additionally, the plaintiffs could not obtain an accounting from the trustees without naming them as defendants in the action.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a school district consolidation complied with constitutional procedural requirements
Whether taxpayers can avoid bonded debt liability by alleging misuse of bond proceeds
Whether a petition stating only legal conclusions without factual support states a valid cause of action
Whether plaintiffs must name trustees as parties to obtain an accounting

Procedural posture

The trial court sustained a demurrer to the plaintiffs' petition seeking to enjoin tax executions and dismissed the action, and the plaintiffs appealed.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Bell, Justice.

1. By an amendment proposed in 1931 and ratified in 1932, the constitution of this State was made to contain the following provision: “Authority is hereby given to two or more local school districts, any one or more of which may have incurred a bonded indebtedness, to consolidate upon the condition that such bonded indebtedness outstanding shall be assumed by the entire district as consolidated; provided, however, before such consolidation shall become effective, the same shall be approved by the vote of two thirds of the qualified voters of each district affected, at separate elections held for that purpose on the recommendations of the respective boards of trustees.” Code, § 2-6901 (Acts 1931, pp. 103, 105, ratified November 8, 1932).

2. While, except for the amendment to the constitution as quoted above, the petition might have been sufficient to state a cause of action, under the rulings in Perry v. Baggett, 164 Ga. 143 (137 S. E. 766), Towns v. Workmore Public School District, 166 Ga. 393 (142 S. E. 877), Barber v. Cummings, 167 Ga. 289 (145 S. E. 443), and Register v. Colter, 171 Ga. 439 (155 S. E. 767), those decisions were rendered before the adoption of the amendment, and therefore are not controlling in the present case.

3. The executions which the plaintiffs sought to enjoin were presumably proceeding lawfully, and the plaintiffs had the burden of showing the contrary. Hilton v. Singletary, 107 Ga. 821 (3) (33 S. E. 715); Thompson v. Selcer, 142 Ga. 809, 812 (83 S. E. 965); Wright v. Southern Ry. Co., 146 Ga. 581 (7) (91 S. E. 681); Blalock v. Adams, 154 Ga. 326 (3) (114 S. E. 345).

4. With the exception of mere conclusions of law as to the illegality of the consolidation, the petition contained nothing to indicate that the school districts were not consolidated in conformity to the foregoing constitutional provision; and thus it was fatally defective as failing to show any reason why the plaintiffs’ property respectively should not bear its pro rata part of the bonded indebtedness, so far as the matter of consolidation is concerned. Whitehurst v. Jones, 117 Ga. 803 (45 S. E. 49); Jones v. Ezell, 134 Ga. 553 (68 S. E. 303); Witherow v. Board of Drainage Com., 155 Ga. 476 (5) (117 S. E. 329); 49 C. J. 46, 62, §§ 18, 40. The present case differs on its facts from Scarborough v. Houston, 179 Ga. 194 (175 S. E. 491), where the petition alleged specific facts showing that such constitutional provision was not complied with; and from Campbell v. Burton, 182 Ga. 354 (2) (185 S. E. 323), where the tax was not levied to pay a bonded indebtedness.

5. The fact, that the funds derived from the sale of the bonds may have been improperly xrsed by the trustees does not relieve the taxpayers from liability to the innocent bondholders. Code, § 87-305; Dumas v. Rigdon, 151 Ga. 267 (106 S. E. 261).

6. Whether or not the petition otherwise stated cause for an accounting from the trustees, the plaintiffs were not entitled to such relief without making the trustees parties defendant. Wyche v. Green, 32 Ga. 341; Roberts v. Moore, 136 Ga. 790 (3) (72 S. E. 239); Isom v. Nutting, 153 Ga. 682 (113 S. E. 197); Cowan v. Nicholson, 158 Ga. 425 (123 S. E. 681); Swann v. Wright, 176 Ga. 372 (168 S. E. 11).

7. The foregoing rulings dispose of all contentions made in this court by the plaintiffs. The judgment sustaining the demurrer and dismissing the petition was not erroneous for any reason urged. Judgment affirmed.

All the Justices concur.

rehearing opinion

ON MOTION EOR REHEARING.

It is insisted that since the consolidation occurred in the year 1935, the tax for that year was retroactive and illegal. To support this contention the movants cite Moore v. Howard, 181 Ga. 605 (183 S. E. 495). That decision has no application to the case at bar. In the first place, the petition here proceeded upon the theory of illegal consolidation, and did not assail the tax or any part of it upon the ground of “retroactiveness.” In the next place, the decision cited was based upon an election for local school tax, as distinguished from a tax for the payment of a bonded indebtedness. In the instant case the only tax challenged is a “school bonded tax;” and in view of the amendment to the constitution as ratified on November 8, 1932, providing that’districts may by prescribed elections “consolidate upon the condition that such bonded indebtedness outstanding shall be assumed by the entire district as consolidated” (italics ours), a tax levied for such purpose in the year 1935 after a consolidation in the same year, even if retroactive, would not be illegal, as contended by the movants. See, in this connection, Bass v. Columbus, 30 Ga. 845; Carroll v. Wright, 131 Ga. 728 (6) (63 S. E. 260); Brushaber v. Union Pacific Railroad Co., 240 U. S. 1, 20 (36 Sup. Ct. 236, 60 L. ed. 493); Tyee Realty Co. v. Anderson, 240 U. S. 115 (36 Sup. Ct. 281, 60 L. ed. 554); Lynch v. Hornby, 247 U. S. 339, 343 (38 Sup. Ct. 543, 62 L. ed. 300); United States v. Hudson, U. S. ( Sup. Ct., 81 L. ed. 261).

Rehea/ring denied.

All the Justices concur, except Beclc, P. J., absent because of illness.