Opinion
18768.
ARGUED OCTOBER 13, 1954.
DECIDED NOVEMBER 10, 1954. REHEARING DENIED DECEMBER 2, 1954.
Injunction. Before Judge Price. Wheeler Superior Court. July 10, 1954.
Nelson Nelson, Carl K. Nelson, for plaintiffs in error.
W. S. Mann, R. M. Daley, contra.
1. The act of 1953 (Ga. L. 1953, Nov.-Dec. Sess., pp. 282, 283), authorized county boards of education to reorganize schools in their jurisdiction; and the amendment of the petitioners was insufficient to show that this act could not be constitutionally applied by the Wheeler County Board of Education to the schools within its jurisdiction.
2. The trial judge did not abuse his discretion in failing to grant a continuance to the next term, as requested by the petitioners when the case was called for trial.
3. Since the rendition of the decision by this court in the former appearance of this case ( Irwin v. Crawford, 210 Ga. 222, 78 S.E.2d 609), the General Assembly has given county boards of education the authority to reorganize schools which this court declared was lacking under the former laws, and the petitioners now have no right to enjoin the Wheeler County Board of Education from exercising its discretion as to the reorganization of the schools in its jurisdiction.
4. Since no testimony was introduced at the time the case came on for final trial, the proper judgment was one denying the petitioners' prayers for relief, and not the direction of a verdict for the defendants.
ARGUED OCTOBER 13, 1954 — DECIDED NOVEMBER 10, 1954 — REHEARING DENIED DECEMBER 2, 1954.
On November 12, 1953, on a former appearance of the present case, this court held that the consolidation of the high-school grades of the Glenwood School with the Alamo School was not a consolidation of schools under the provisions of Code § 32-915, which authorizes county boards of education to consolidate two or more schools into one school; and that the petition was good as against a general demurrer, since the proposed action by the Wheeler County Board of Education was beyond the jurisdiction of the board and contrary to law. (See Irwin v. Crawford, 210 Ga. 222, 78 S.E.2d 609) for a statement of the issues made by the petition for equitable relief.)
On December 18, 1953, an act of the General Assembly was approved (Ga. L. 1953, Nov.-Dec. Sess., pp. 282, 283), which provides: "The board of education of any county or independent school system is hereby authorized and empowered, if, in their opinion, the welfare of the schools of the county or independent system and the best interests of the pupils require, to reorganize the schools within their jurisdiction and to determine and fix the number of grades to be taught at each school in their respective systems."
Thereafter, on May 14, 1954, an amendment to the petition was allowed, subject to demurrer. In substance this amendment alleged: Under constitutional acts of the General Assembly, a high school was established and maintained at Glenwood for more than thirty years, and the performance and execution of the aforesaid acts by the defendants and their predecessors in title have created and vested in the children of the Glenwood School District the right to have and obtain a high-school education at Glenwood, and have likewise vested in the citizens and patrons of the school the right to have their children receive and obtain a high-school education at Glenwood. The citizens and patrons of the Glenwood school have voluntarily contributed large sums of money for the construction and maintenance of high-school class rooms, a high-school gymnasium, and other high-school facilities (and the amount of the alleged contributions is set forth). By virtue of the facts alleged, the petitioners have acquired a vested legal right, and are entitled by law, to have the Glenwood High School maintained and operated. The threatened acts of the defendants to consolidate the Glenwood High School with the Alamo High School, through the procedure authorized under the "reorganization" act of 1953, renders the application and enforcement of the 1953 act unconstitutional, in that it contravenes and violates art. I, sec. X, par. I of the Constitution of the United States (Code § 1-134), which provides in part that "No State shall . . . pass any . . . law impairing the obligation of contracts"; and also contravenes and violates art. I, sec. III, par. II of the Constitution of the State of Georgia (Code, Ann., § 2-302), which provides in part: "No . . . ex post facto law, retroactive law, or law impairing the obligation of contracts, . . . shall be passed." The threatened and intended use of the authority and power claimed by the board of education under the act of 1953 will impair and destroy the legal and contractual rights of named classes of citizens, and renders the authority and power granted by the act null and void, in violation of the stated provisions of the State and Federal Constitutions.
Prior to the amendment of the petition, the defendants amended their answer, setting out the provisions of the act hereinbefore quoted, and praying that the permanent injunction sought be denied, and that the defendants be permitted to consider questions related to the reorganization of schools under the provisions of the 1953 act.
On the same date the amendment to the petition was allowed, the trial judge passed an order reciting that the amendment had been allowed subject to demurrer, and it was dismissed on motion of the defendants. On the same date the trial judge called a jury to the box, directed a verdict for the defendants, and entered a judgment thereon, which judgment was vacated, and a different judgment rendered on May 31, 1954. The petitioners filed a motion for new trial, which was denied, and the exception is to that judgment.
In ground 4 of the amended motion for new trial, it is contended that the court erred in denying the motion of the petitioners for a continuance, it being contended that the amendment to the defendant's answer set up an entirely new and different defense from the one set up in their original answer. The court called the case for trial at 10 o'clock a. m. on May 10, 1954, and denied counsel's motion for a continuance to the next term of the court, but ordered the case to proceed to trial on May 14, 1954. It is insisted that the court grossly abused its discretion in denying the motion, and the petitioners should be granted a new trial because of this ruling of the court.
Grounds 5, 6, and 7 attack the method whereby a jury was procured, it being contended that the petitioners were entitled to a panel of twenty-four jurors from which to strike and select a jury. The court refused to furnish such a panel and refused to permit the petitioners to strike a jury, but impaneled a jury of twelve, of the court's selection. It is contended that the action of the court with reference to the selection and impaneling of a jury was flagrant and grievous error, and rendered all further proceedings nugatory.
In grounds 8, 9, and 10, it is contended that the court erred in directing a verdict for the defendants without any evidence of any kind to support it, that the verdict is illegal and void, and that the petitioners should be granted a new trial.
1. The allegations of the petitioners' amendment are insufficient to establish any contract between the petitioners, or citizens and patrons of the Glenwood High School, with the County Board of Education of Wheeler County for the maintenance of a high school in the Glenwood District.
The Constitution of 1945, art. VIII, sec. V, par. I (Code, Ann., § 2-6801), provides in part: "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."
It is not contended that this or any other provision of the Constitution, or any act of the General Assembly, relating to schools in this State, confers upon a county board of education any right to contract for the maintenance of a school continuously or for any period of time in any school district in this State. The allegations of the amendment are insufficient to show any such contract by implication. Assuming that every allegation of the amendment is true, and that the patrons of the Glenwood School have contributed to the maintenance of the school all that is alleged, the most that could be said is that the citizens and patrons of this school district have shown a commendable attitude in their desire that their children have the use of the best facilities within the power of the citizens and patrons to provide. To hold that, because citizens or patrons of a school had made large contributions to the school, a contract for the continuous operation of the school had arisen by implication, would be to limit and restrict county boards of education in receiving gifts or grants for public education in this State. In the absence of any constitutional or statutory provision authorizing contracts for the continuance of a school for an indefinite period of time, a contract for continuance may not arise by implication because citizens and patrons of the school have been generous and have donated good facilities for the use and benefit of the children of the school district.
2. Generally, laws take effect from the date of their enactment, and ignorance of the law is no excuse. Code § 102-105; Woodburn v. Western Union Telegraph Co., 95 Ga. 808 ( 23 S.E. 116); City of Valdosta v. Singleton, 197 Ga. 194, 208 ( 28 S.E.2d 759), and citations. The contention of the petitioners that they were surprised by the amendment pleading the act approved December 18, 1953 (Ga. L. 1953, Nov.-Dec. Sess., pp. 282, 283), is without merit, and the trial judge did not abuse his discretion in refusing to continue the case to the next term.
3. The act of 1953, above cited, conferred upon the County Board of Education of Wheeler County a discretion to act, with which they were not vested at the time of the decision of this court in the former appearance of this case. See Irwin v. Crawford, 210 Ga. 222 ( 78 S.E.2d 609). The General Assembly had the power to confer on county boards of education the right to consolidate schools, in whole or in part, in the exercise of the discretion of such board.
In the present case the County Board of Education of Wheeler County had not adopted any formal order, motion, or resolution consolidating the two high schools. If, in the future, after a due consideration of the matter, the county board of education decides to consolidate the high school at Glenwood with the high school at Alamo, and if there should be objection, the petitioners have the right to a hearing before the county board of education and an appeal to the State Board of Education. Laws operating upon the remedy are not unconstitutional and void. Code § 102-104; Walker Electrical Co. v. Walton, 203 Ga. 246 ( 46 S.E.2d 184), and citations.
What is said here is not in conflict with the decision of this court in Hobbs v. Bishop, 210 Ga. 818 ( 82 S.E.2d 839). In the Hobbs case the board of education had adopted formal orders and resolutions for the consolidation of portions of two schools prior to the act of 1953. In the Hobbs case the board of education was relying upon orders and resolutions adopted at a time when the board was without a discretion to act, under the ruling of this court in Irwin v. Crawford, supra.
4. Verdicts must be founded on testimony, and where none is introduced, the defendant is not entitled to a verdict. Stotesbury v. Lanier, 42 Ga. 120; Burdell v. Blain, 66 Ga. 169 (2); Sprinz v. Frank, 81 Ga. 162 ( 7 S.E. 177); Horne v. Rodgers, 103 Ga. 649 (3) ( 30 S.E. 562).
Since there was no testimony introduced in the present case, the defendants were not entitled to have a verdict directed in their favor. This, however, does not afford cause for reversing the judgment of the court below. Since the petitioners in the cause could not prevail and were not entitled to any relief, direction is given that the verdict directed by the court, and the judgment entered thereon, be stricken and a judgment be entered denying the petitioners' prayers for relief.
Judgment affirmed with direction. All the Justices concur, except Wyatt, P. J., who dissents.