dissenting. The controversy below involves the constitutionality of a 1956 population Act (Ga. L. 1956, pp. 2764, 2765) and, if constitutional, then its interpretation.
The 1956 Act was originally applicable only to Fulton County. By the 1970 census it is applicable also to DeKalb County. The Act requires the County Board of Commissioners to pay to the County Board of Education "from any funds held by or available to Commissioners of Roads and Revenues thereof and derived from sources other than taxation” the sum of $30,000 per month. This payment by the Board of Commissioners is in addition to taxes levied in the county for school purposes.
The DeKalb County Board of Commissioners brought a declaratory judgment action contending that the 1956 Act is unconstitutional, but that if the Act is held to be constitutional, then the county does not have revenues from sources other than taxation, unallocated to other legal county purposes, with which to make the monthly payment.
The County Board of Education filed defensive pleadings which included a cross complaint seeking a mandamus absolute against the County Board of Commissioners requiring it to make the monthly payment as provided for in the Act.
The Board of Commissioners filed a motion for summary judgment. The trial judge denied the motion for summary judgment, held the 1956 Act to be constitutional, and *689granted the Board of Education’s prayer for a mandamus absolute requiring the monthly payment by the Board of Commissioners to the Board of Education.
I agree that the denial of the motion for summary judgment was proper, the ruling holding the 1956 Act to be constitutional was proper, but that the trial court committed error in granting a mandamus absolute. I would reverse the judgment for the reasons hereinafter stated.
The motion for summary judgment was based solely upon the unconstitutionality of the 1956 Act. Since I consider the 1956 Act constitutional, it was proper to deny the motion for summary judgment.
I interpret the language in the 1956 Act to mean that the Board of Commissioners shall, on demand, pay to the Board of Education the stipulated sum from any funds held by or available to the Commissioners of Roads & Revenues thereof and derived from sources other than taxation provided the Board of Commissioners holds or has such funds available which are not allocated to other legal county purposes. Whether or not there are such unallocated funds held or available to the Board of Commissioners is a question of fact.
If this language in the Act is interpreted in this way, then plainly the Act is constitutional, because it does not require the payment of revenues in excess of the constitutional amount that can be levied for school purposes by a county.
If a construction can be placed upon a statute which will save it from being declared unconstitutional, it is the duty of the courts to adopt such construction and thus save the Act from collision with organic law. Bennett v. Wheatley, 154 Ga. 591 (115 SE 83).
It was error, however, to grant a mandamus absolute in favor of the Board of Education requiring the Board of Commissioners to pay the stipulated monthly sum. A question of fact remains to be determined in the court below. If the Board of Commissioners has funds being held by it or available to it and unallocated for other legal county pur*690poses, then it should be required to pay to the Board of Education from such unallocated funds the stipulated monthly sum or such portion thereof as it may be able to pay-
It follows that I would reverse the judgment only for the reason stated herein.
I respectfully dissent.