Opinion
15755, 15756.
MAY 15, 1947.
Illegality of execution. Before Judge Powell. Metter City Court. May 21, 1946.
Booth Preston, for plaintiff in error.
Hugh R. Kimbrough, contra.
1. In view of the questions made in the record as to a proper construction of certain provisions of the Constitution of 1945, this court and not the Court of Appeals has jurisdiction of the instant case; and this is true, although upon a consideration of the entire case, this court determines that a decision upon such constitutional questions is not necessary to a proper solution of the case, and makes no decision thereon.
2. Whether or not the provisions of the Constitution of 1945, relied on by the defendant in execution (a surety), abrogated all remedies for enforcing the debt against the local tax school district as the principal debtor, such a change in the law would not render the debt itself extinct within the meaning of the Code, § 103-102, so as to discharge the surety from his obligation.
( a) The court did not err in sustaining the general demurrer and striking the affidavit of illegality.
3. The affidavit of illegality having been correctly stricken or dismissed for insufficiency, as stated above, the plaintiff in execution was prima facie entitled to an immediate trial upon his claim for damages, and the court erred in refusing his request for such trial.
Nos. 15755, 15756. MAY 15, 1947.
The question raised in the main bill of exceptions is as to the sufficiency of an affidavit of illegality, being the second affidavit that was filed, to withstand a general demurrer. In the cross-bill of exceptions, error is assigned on the refusal of the trial judge, after striking the affidavit of illegality, to impanel a jury for the purpose of trying a claim for damages presented by the plaintiff in fi. fa., alleging that the affidavit of illegality was interposed for the purpose of delay only.
On March 15, 1927, Pulaski School District of Candler County borrowed $1092.65 from The Farmers Bank of Pulaski, and gave its note therefor due January 1, 1928. The note was signed "pulaski School District, H. L. DeLoach, Chmr., Chas. L. Nevill, Secy. and Treas.," on its face, and signed on the back by H. L. DeLoach, Chas. L. Nevill, T. C. Dekle, and Geo. O. Franklin. The bank closed, and on August 18, 1929, A. B. Mobley, superintendent of banks, in charge of the payee bank, obtained judgment on said note in the City Court of Metter against Pulaski School District and the individuals who had signed the note on the back thereof. On August 17, 1943, an execution issued on the aforesaid judgment was levied on land belonging to Geo. O. Franklin. He filed an affidavit of illegality on several grounds. On August 21, 1944, the individual defendants in the execution filed a petition under the provisions of the Code, § 103-307, to amend the judgment so that it would show they were sureties only, and after the introduction of evidence a judgment was rendered on June 19, 1945, amending the judgment and execution in favor of the superintendent of banks by inserting the word "principal" after the name, Pulaski School District, and the word "sureties" after the names of the individual defendants. The issues made by the affidavit of illegality were then tried and judgment was rendered in favor of the plaintiff in fi. fa. Geo. O. Franklin filed a motion for a new trial which was overruled, and that judgment was affirmed by the Court of Appeals. Franklin v. Mobley, 73 Ga. App. 245 ( 36 S.E.2d 173).
Thereafter, on March 22, 1946, Franklin presented to the sheriff another affidavit of illegality, which was filed in the clerk's office on the same day. The legal sufficiency of this second affidavit is the question for determination under the main bill of exceptions. Substantially, the grounds alleged therein why the levy was proceeding illegally were:
Prior to the adoption of the new Constitution on August 7, 1945, it was within the powers of the trustees of a local school district, such as the Pulaski School District, to levy a maintenance tax on taxable property within the area of the school district for the purpose of paying salaries of teachers and other expenses of maintaining the school in such district, and for paying debts incurred in the maintenance and operation thereof; and in case of their refusal to levy and collect such tax for the purposes stated, they could be compelled by mandamus so to do. By the adoption of the new Constitution, the power of levying such maintenance tax was taken away from the school district trustees, they being reduced to the category of a mere advisory board, the only provision in the new Constitution respecting school district trustees being in Art. 8, Sec. 5, Par. 1, in the following words: "The General Assembly shall have authority to make provision for local trustees of each school in a county system and confer authority upon them to make recommendations as to budgets and employment of teachers and other authorized employees."
By Art. 8, Section 12, Paragraph 1, the new Constitution empowers the fiscal authority of the several counties to levy a tax for the support and maintenance of education, not less than five mills nor greater than fifteen mills (as recommended by the county board of education), upon all taxable property in the county located outside independent school systems; and Art. 7, Sec. 1, Par. 3 provides that all taxation shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax. Under these provisions of the new Constitution, the school maintenance tax to be levied by the fiscal authority of Candler County must be uniform throughout the county. They cannot levy a higher tax on the property in one portion of the county than another. This execution represents a debt of the Pulaski School District, and not the debt of the entire County of Candler, and the fiscal authority of the county has no power to levy a tax against the entire county for the payment of a debt of the Pulaski School District.
The new Constitution is now the supreme law of the State, and by its repeal of the previously existing provisions of the law which made possible the collection of a debt of this nature against a local school district, and by making no machinery for the enforcement of such a debt, the execution now levied became extinct as against the Pulaski School District, the principal defendant.
"10. `The obligation of the surety [is accessory] to that of his principal, and if the latter from any cause becomes extinct, the former shall cease, of course, even though it is in judgment.' (Code, 103-102.) Should affiant be required to pay said execution, he would have no means of reimbursing himself from his principal, and since the new Constitution has deprived him of this right, his obligation has likewise become extinct.
"11. The equitable owners of said execution, for whose use its enforcement is sought [in the name of the superintendent of banks], cannot complain, because they have been guilty of gross laches in permitting so many years to pass without making any effort to collect out of the principal, while the law then existing made it possible for them to do so.
"12. A previous affidavit of illegality was filed by affiant to a previous levy of said execution on the same property, and a judgment rendered thereon against affiant on June 25, 1945, but the grounds of this present affidavit did not then exist, having subsequently come into existence with the adoption of the new Constitution on August 7, 1945."
On May 21, 1946, the plaintiff in fi. fa. filed a general demurrer and a traverse to the affidavit of illegality; also a claim for 25 percent damages, alleging that said affidavit of illegality was filed for delay only, and praying "that the court allow this issue and claim to be docketed and tried by the jury . . by reason of the filing of said affidavit of illegality for the purpose of delay only."
On the same day, May 21, 1946, the judge sustained the demurrer to the affidavit of illegality. On the claim for damages, he entered the following order: "The within claim for damages having been presented after filing, and it being the opinion of the court that it is prematurely urged, the court therefore refuses to empanel a jury for the purpose of trying the issue of damages as raised by the within claim at this time." To the judgment refusing to impanel a jury to try the issue of damages raised by its claim, the plaintiff in fi. fa. excepted pendente lite.
The defendant in fi. fa. sued out a bill of exceptions to the Court of Appeals, assigning error on the judgment sustaining the demurrer to the affidavit of illegality; and the plaintiff in fi. fa., by cross-bill of exceptions, assigned error on the court's judgment entered on the claim for damages.
The Court of Appeals, being of the opinion that a construction of certain provisions of the Constitution of this State was involved, transferred the bills of exceptions and portions of the record therein specified to this court.
1. The first question for determination is whether the case is one that comes within the jurisdiction of this court, and more particularly within the clause of the Constitution providing that the Supreme Court shall have jurisdiction "in all cases that involve the construction of the Constitution of the State of Georgia." Code, § 2-3005; Code, Ann. Supp., § 2-3704. As to jurisdiction of the Court of Appeals, see Code, § 2-3009; Code, Ann. Supp., § 2-3708.
The affidavit of illegality by which the case originated, being a second affidavit, sought construction of three provisions of the Constitution of 1945, as follows:
"All taxation shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax." Art. 7, Sec. 1, Par. 3; Ga. L. 1937, p. 40; Ga. L. 1945, p. 58; Code, Ann. Supp., § 2-5403.
"Authority is granted to counties to establish and maintain public schools within their limits. Each county, exclusive of any independent school system now in existence in a county, shall compose one school district and shall be confined to the control and management of a County Board of Education. . . The General Assembly shall have authority to make provision for local trustees of each school in a county system and confer authority upon them to make recommendations as to budgets and employment of teachers and other authorized employees." Art. 8, Sec. 5, Par. 1; Ga. L. 1945, p. 79; Code, Ann. Supp., § 2-6801.
"The fiscal authority of the several counties shall levy a tax for the support and maintenance of education not less than five mills nor greater than fifteen mills (as recommended by the County Board of Education) upon the dollar of all taxable property in the county located outside independent school systems." Art. 8, Sec. 12, Par. 1; Ga. L. 1945, p. 81; Code, Ann. Supp., § 2-7501.
The debt in question was for money borrowed from a bank by Pulaski School District, Candler County, in 1927, for which debt the present defendant in fi. fa. and three other persons were sureties. The defendant contends, in effect, that in view of the foregoing provisions, the Constitution of 1945 repealed all previously existing statutes and constitutional provisions which made possible the collection of a debt of this nature against a local school district; and that, since there is now in existence no remedy or machinery for the enforcement of such debt against the school district, it was extinguished as to the school district by the adoption of such Constitution of 1945. The defendant also invokes the following provision of law, as contained in the Code, § 103-102: "The obligation of the surety is accessory to that of his principal, and if the latter from any cause becomes extinct, the former shall cease, of course, even though it is in judgment." And he alleges further that the debt has likewise become extinct as to himself as surety, since, if he should be required to pay it, he would have no means of reimbursing himself.
In Gulf Paving Co. v. Atlanta, 149 Ga. 114 ( 99 S.E. 374), this court, construing the above-mentioned provisions of the Constitution as to jurisdiction of the Supreme Court and the Court of Appeals, said: "The Court of Appeals has jurisdiction to decide questions of law that involve application, in a general sense, of unquestioned and unambiguous provisions of the Constitution to a given state of facts, and that do not involve construction of some constitutional provision directly in question and doubtful either under its own terms or under the decisions of the Supreme Court of the State or of the United States, and that do not involve the constitutionality of any law of the State or of the United States or any treaty." Under this rule, we hold that this court and not the Court of Appeals has jurisdiction of the instant case. However, this conclusion as to jurisdiction does not mean that a decision upon the constitutional questions raised in the record must necessarily be made, or will be made, in reaching a correct solution of the case. See Burns v. State, 191 Ga. 60 (1, 4), 65 ( 11 S.E.2d 350); Florida State Hospital v. Durham Iron Co., 192 Ga. 459 ( 15 S.E.2d 509); Brockett v. Maxwell, 200 Ga. 213 ( 36 S.E.2d 638).
It may not be amiss to mention at this point that the record does not present any question as to whether any or all of the foregoing provisions of the Georgia Constitution could, consistently with the United States Constitution, render extinct a previously existing debt, but in so far as these provisions are concerned the only questions here raised are as to their proper construction or meaning. Compare Morris v. Interstate Bond Co., 180 Ga. 689 ( 180 S.E. 819, 100 A.L.R. 415); Atlantic Loan Co. v. Peterson, 181 Ga. 266 ( 182 S.E. 15); Wheeler v. Board of Trustees of Fargo School District, 200 Ga. 323 ( 37 S.E.2d 322).
2. Even if it should be held that the provisions of the Constitution of 1945, upon which the defendant in execution relies, did abolish all remedies for the collection of this debt, as insisted by him, it would not follow that the debt itself would be extinct within the meaning of the Code, § 103-102, supra. When the law speaks of a right or obligation as being extinguished, it means that it is completely destroyed, or annihilated. The debt here is still in existence as a debt of the school district, even assuming that there are no present remedies for its collection. See, in this connection, 25 C. J. 229-30; 35 C. J. S. 293-94; 15 Words Phrases (Perm. ed.) 387.
Similar questions have been presented in cases involving debts that were barred by statutory limitation. For instance, it has been held that, where a deed was given to secure a debt, the debt until actually paid will continue to be a sufficient support for the deed, even though it has itself become barred by the statute of limitations. Kirkpatrick v. Faw, 182 Ga. 25 ( 184 S.E. 855). "Lapse of time, even to the extent that all legal remedies of the creditor would be barred, would not operate as a redemption of the land and revest the title in the grantor or his heirs." Shumate v. McLendon, 120 Ga. 396 (7), 400 ( 48 S.E. 10). Also, in the following cases it was held in effect that a debt does not become extinct merely because it has become barred by limitation. Reid v. Flippen, 47 Ga. 273; Langston v. Aderhold, 60 Ga. 376; Scott v. Gaulding, 187 Ga. 751 ( 2 S.E.2d 69, 122 A.L.R. 200). In the Langston case, supra, it was said that: "The statute goes to the remedy, and does not act directly upon the right. The right remains intact. In conscience, the contract is as binding after the remedy is barred, as it was before the bar attached."
While it may be that none of these cases are directly in point, they do support the view, some perhaps more strongly than the others, that even if all remedies for enforcing the original obligation of the Pulaski School District should be held abolished or repealed by the Constitution of 1945, the debt itself would not be thereby rendered extinct within the purview of the Code, § 103-102.
Moreover, in Phillips v. Solomon, 42 Ga. 192, this court, in holding that the discharge in bankruptcy of a principal debtor would not operate to discharge a surety, stated that what is now section 103-102 (then section 2121 of the Code of 1868) was a mere affirmance of the common law, and that the words, "from any cause," meant any cause dependent on the act or negligence of the creditor, and did not "include a cause in which the law was the mover, and over which the creditor had no control, and [with] which his acts had nothing to do;" such being the rule at common law, as shown in the opinion. See also 50 C.J. 93, 188, §§ 150, 311. It does not appear that the creditor is any more responsible for the situation that now exists than is the surety himself, the defendant in fi. fa. While sureties are persons favored by the law and their rights are zealously guarded both at law and in equity, yet the law imposes certain burdens upon the surety to protect himself, and affords means for such protection. See Scott v. Gaulding, 187 Ga. 751, 755, 756 (supra).
In view of what has been said in this division, the court did not err in sustaining the general demurrer and dismissing the affidavit of illegality; and this is true regardless of whether the defendant in fi. fa. is correct or incorrect in his contentions as to abrogation of remedies. This conclusion renders it unnecessary to make any ruling or decision as to the proper construction of the constitutional provisions mentioned in the affidavit of illegality, as related to the contentions therein urged; and, accordingly, no such decision will be made. See Oliver-McDonald Co. v. Swift Co., 157 Ga. 102 ( 120 S.E. 543); s. c. 159 Ga. 1 ( 124 S.E. 525).
3. In the cross-bill of exceptions, the plaintiff in fi. fa. complains that the court, after striking the affidavit of illegality, erred in refusing to impanel a jury for immediate trial of the plaintiff's claim for damages. According to the judge's order, he considered that the claim was prematurely urged. It was probably his view that the claim for damages should not be tried until after a decision by the court of review as to whether the affidavit of illegality had been properly dismissed.
The affidavit itself was triable at the first term. Code, § 39-1006. Also, there are two other sections of the Code that should be considered in this connection. "Whenever a claim shall be dismissed for insufficiency or withdrawn, plaintiff in execution may have a case made up and submitted to the jury, charging that said claim was filed for the purpose of delay, and upon proof of the same — the defendant and claimant having the same power to resist as in claim cases where damages are claimed — the jury, under instructions from the court, may give damages as in cases where the claim is not withdrawn but submitted for trial to the jury; said cases so submitted shall be tried at the time of the disposal of the claim if the parties are ready, but continuances shall be granted as in other cases." Code, § 39-906. "Upon the trial of an issue formed on an affidavit of illegality filed in the superior courts, the jury trying the case shall have power to assess such damages, not exceeding 25 percent, as may seem reasonable and just, upon the principal debt, provided it shall be made to appear that such illegality was interposed for delay only. Whenever an illegality may be dismissed for insufficiency or informality, or is withdrawn, plaintiff in execution may proceed as is provided in cases where claims may be dismissed or withdrawn." § 39-1007.
In the instant case, the affidavit of illegality was dismissed for insufficiency, and, as seems to us, the clear language of the Code entitled the plaintiff to proceed at once with his claim for damages, in the absence of some valid reason for a continuance or postponement. Accordingly, we hold that it was error to refuse the plaintiff's request.
Judgment affirmed on the main bill of exceptions; reversed on the cross-bill. All the Justices concur.