165 Ga. 1 | Ga. | 1927
Lead Opinion
By an agreement between the parties all issues of law and fact were submitted to the judge of the superior court, who was empowered to hear and determine all issues, either in term or vacation, with right of appeal by either party.
The State tax for 1924 was $5 per $1000, or five mills, and the valuation of the property of the Central of Georgia Railway Company in Spalding County in 1924 was $584,025. In 1925 the State tax was $5 per $1000, and the taxable value of the property in 1925 was $624,052. The Central of Georgia Railway Company paid all its taxes for 1925, except $8237.48, which represents a tax of $13.20 per $1000 on the assessed value of the property in Spalding County. There were grand , juries empaneled and organized at first or spring term in both 1924 and 1925 of the superior court of Spalding County. The treasurer did not submit a statement of the financial condition of the county and the amount
The proceeds of the levy made in items 3, 4, and 5 of the
In the affidavits of illegality and exhibits it is alleged: (a) The railway company has paid all taxes lawfully levied for 1924,. except $846.83, which represents a tax of $1.45 per $1000 upon its property. The board of commissioners of roads and revenues levied a total tax of $22.20 per $1000 in 1924, levying a total of $6.45 per $1000 in items 1, 3, 5, and 8, for the payment of accumulated debts and all ordinary current expenses of the county, which levies are illegal and void to the extent of $1.45 per thousand, for the reason that 100 per cent, of the State tax is the maximum amount which a county can lawfully levy for the payment of its accumulated indebtedness and its current expenses. For 1925 the board of roads and revenues ordered the levy of a tax of $23.70 per $1000 on the property subject to taxation; and the tax of $3.95 per $1000 levied in item 1 is void, because the proceeds of the tax are not intended to be used and will not be used to pay legal indebtedness as stated, but said proceeds are intended to be used and will be used to pay incidental ordinary current annual expenses of the county not otherwise provided for in the levy, (b) If said proceeds are to be used for the purposes set out in item one, the tax is void nevertheless, because no grand jury recommended the levy of this tax; and though a grand jury was empaneled at every term of the superior court in 1925 and made general presentments, its foreman was not presented with the treasurer’s statement of the financial condition of the county and the amount of tax required to discharge the county’s liabilities for the year; the grand jury did not adjourn without taking any action on such statement, since none was presented to it, nor did it refuse to make recommendation sufficient to discharge judg
In ground 6 of the affidavit of illegality it is alleged: (a) The tax of $2.50 per $1000, levied in item 10, “to pay salaries of county agent and for educational purposes, as provided by the Acts 1922, p. 81,” is void, because it is levied on all the property in Spalding County, including the territory within the City of Griffin, and the levy is therefore indivisible, (b) The levy is for a county purpose which is not an ordinary, regular, annual, current expense of the county, and was made without the recommendation of two thirds of the grand jury at the first or spring term, (c) The levy is void and unconstitutional, in that it violates par. 1 of see. 4 of art. 8 of the constitution of Georgia, as amended November 2, 1920. The County of Spalding, under item 11 of the levy of 1925, did levy the sum of 5 mills or $5 per $1000 of taxable property, “to support and maintain the public schools of Spalding County outside the City of Griffin, . . the same being levied upon the recommendation of the board of education; and having levied the sum of $5 per $1000 of taxable property under the amendment to the constitution adopted in 1920, the county is without authority to levy any additional tax for educational purposes, and the levy of $2.50 per $1000 is therefore excessive, without authority of law, and beyond the power of the said county, and is unconstitutional and void in that it is violative of par. 1 of sec. 4 of art. 8 of the constitution of Georgia. The seventh ground of illegality is a contention that if the levies in items 1 and 10 are not void for the reasons above set out, then each of them is a levy to pay current expenses; that the levies to pay ordinary annual current expenses of the county, as set forth in items 1, 3, 4, 5, 6, 8, 9, 10, and 11, total 15.70 mills; that said levies are void, because they were not recommended by the grand jury of Spalding County, and, if not void in their entirety, they are void to the extent of $13.20 per $1000, by which
The judgment of the trial judge was as follows:
“The Central of Ga. Ry. Co., by affidavit of illegality filed to certain tax fi. fas. issued by the comptroller-general and the levies of same on described property, questions the legality of certain portions of Spalding County’s tax levies for the years 1934 and 1935. The Railway Company paid all taxes admitted by it to have become due and payable under the items of the levies for said years which it admits are legal levies. The issues raised, both of law and fact, were submitted to me for decision in vacation, without a jury, on agreed statement of facts, and written briefs of counsel. The issues in each are identical, except as to the amount of tax claimed .to be illegally levied by the county authorities, and both cases were treated in all respects and were argued by counsel as one case, and I so treat them.
“The facts as stated are agreed on, and present no issue for determination. The difficulty in reaching a decision arises when an effort is made to decide what the law is, and to apply the law to the undisputed facts, and reach a satisfactory conclusion as to whether the two county levies are legal or illegal. In an effort to find what is the law, decisions of the higher courts in Georgia have been of no assistance to me, because of irreconcilable (by me) conflicts in them; and consequently the conclusions I have reached, and now state, have been reached by me without relying upon any particular decision of either court as authority for my conclusions (except as respects what may be termed the extra or
“I hold that the levy made each year under the act of 1922, p. 81, to pay salaries of a demonstration agent and to supplement the general school tax, is void under the rule announced in Almand v. Board of Education, 161 Ga. 911, and Brown v. Martin [162 Ga. 172], it being admitted that the county had levied in each year the county-wide tax of 5 mills. The levy for these purposes in 1924 was 1 mill, and in 1925 was 2.5 mills. Since the amounts in each year that these levies would raise are less than the amounts of money in such years which the railway company has refused to pay, it is entitled to deduct such amounts from the balance in each year which it has withheld and refused to pay. The balance remaining should then be paid to the tax-collector, and in default of so doing the fi. fa. should proceed therefor.”
In each case the railway company excepts to that part of the orders which overruled the affidavits of illegality, and the comptroller-general excepts in the cross-bill in each case to that part of the order which sustained the attack upon the tax levied under the act of 1922 (Acts 1922, p. 81). These bills of exceptions and cross-bills involve the same questions. One concerns the legality
It is earnestly contended by counsel for the plaintiff in error that a county can not levy more than 50 per cent, of the State tax without the recommendation of a grand jury for the payment of its current expenses, and that a county can not levy more than 100 per cent, of the State tax for the payment of its current expenses and its accumulated debts. It is further contended that if the levies for the support of the poor, the expenses of the county police, and the support of the school are not void because they are levies for current expenses, then they are void for want of a recommendation of a grand jury. We quote from the brief of counsel for plaintiff in error: “The levy of 3.95 mills ‘to pay the legal indebtedness of the county due, or to become due during the year, or past due,’ was made to pay off warrants issued
“1. Unpaid warrants issued in previous years to pay current expenses do not represent a ‘debt’ of the county for the payment of which a tax may be levied.
“2. The warrants issued in previous years to pay principal and interest on bonds do represent a valid ‘debt,’ and the record shows, therefore, that part of this levy of 3.95 mills is made to pay a valid accumulated debt, and that part is made to pay what is not a lawful ‘debt’ within the meaning of the constitution. So we contend that the entire levy is void, because it does not separate the valid from the invalid items or specify the percentage applicable to each.
“3. The only tax to pay accumulated debts which can lawfully be levied in any amount without the approval of a grand jury is a tax to pay off (1) debts originally incurred to supply a casual deficiency in revenue, and (2) debts originally incurred with the sanction of a popular vote; therefore so much of this item as is intended to pay off warrants originally issued to discharge current expenses is void, because it is levied without the approval of the grand jury.
“4. But, even conceding that the obligations which it is intended to discharge with the proceeds of the levy are lawfully accumulated ‘debts’ within the meaning of the constitution, no levy in excess of the difference between 100% of the State tax and the current expense levy can be made for this purpose, with or without the recommendation of a grand jury, and this levy is void to the extent of at least 1.45 mills. Cf. Code sec. 507.”
We are asked to review and overrule decisions of this court in Wilson v. Gaston, 141 Ga. 770 (82 S. E. 136), Southern Ry. Co. v. Wright, 154 Ga. 334 (114 S. E. 359), and Southwestern R. Co. v. Wright, 156 Ga. 1 (118 S. E. 552). After a very deliberate and painstaking consideration of this case and of previous decisions of this court applicable to the issues, we have reached the conclusion that the trial judge did not err either in overruling so much of the affidavits of illegality as is the subject of the main bills of exceptions or in sustaining that ground of the illegality
A consideration of all of the decisions of this court upon this question will clearly demonstrate that any apparent conflict is reconciled, and that any loose expressions indicating a conflict are without any weight when we consider that from a juridical standpoint these expressions are without any force or effect, because if they were in any sense rulings they were upon questions which were not at the time before the court, and consequently are mere obiter dicta. One instance of this is found in Albany Bottling
In Southwestern R. Co. v. Wright, supra, this court unanimously affirmed a judgment upholding the order of the authorities of Early County in levying, in items 1 and 2, five and sixty-five one hundredths mills (5.65 mills) to pay debts of the county. Item 2 imposed a levy of 1 mill “to pay the bonded indebtedness and interest.” Whatever the difference of opinion as to the meaning of the word “debt,” able counsel for the plaintiff in error admits that a liability approved by a plebiscite and validated by the court
In Central of Georgia Ry. Co. v. Wright, 156 Ga. 13 (118 S. E. 709), where it was said that the aggregate of the tax for both
Item 1 of the order fixing the levy for 1925 is: “To pay the legal indebtedness of the county due, or to become due during the year, or past due, 3.95 mills.” By the terms of section 507 of the Code, “When debts have accumulated against the county, so that one hundred per cent, on the State tax, or the amount specially allowed by local law, can not pay the current expenses of the county and the debt in one year, they shall be paid off as rapidly as possible, at least twenty-five per cent, every year.” In Southwestern R. Co. v. Wright, supra, this court in a decision by a full bench held: “The proper county authorities may legally levy a tax not exceeding 100 per cent, of the State tax, to pay accumulated debts and current expenses of the county, without reference to any recommendation of the grand jury.” When the question then before the court is taken into consideration, it will be seen at once that the question now before us was not then presented for adjudication. Naturally and properly the court did not undertake to decide whether, in case of necessity in order to meet its just obligations, a county was authorized to levy a tax of more than 100 per cent, of the State tax to pay this debt, when the question before it was whether without the recommendation
It was agreed by the parties in this case that there were outstanding liabilities incurred in 1923, amounting to $30,708.15, and similar liabilities incurred in 1924 and payable in 1925, amounting to $37,451.89; and it is admitted it would require a levy of $4.46 per $1000 in 1924 to discharge the debts which had accrued in that year, but which were created in 1923. It is likewise admitted that it would require a levy of $4.83 per $1000 to discharge the accumulated debts which were incurred in 1924, but which were liabilities for which provision should be made in the year 1925. For both of the years 1924 and 1925 the levy actually assessed, $3.95, was within the 100 per cent, authorized by the provisions of section 507. The levy imposed in 1924 was $0.54 per $1000 less than the county would have been authorized to levy for the purpose of paying accumulated debts, and in 1925 it-was $0.17 per $1000 less than would have been authorized for that purpose had the indebtedness been so large as to require the levy of the entire 100 per cent. We think the circumstances of this case clearly show that section 507 of the Code is not to be construed to limit the power thereby conferred, so as to permit county authorities to impose’only an additional levy of 50 per cent, of the State tax over and above the 50 per cent, prescribed by § 508. Properly construed, § 507 authorizes the authorities of a county to levy 100 per cent., and more if necessary, to pay the current expenses of the county and its accumulated debts. If the levy for county purposes authorized by section 508, as in this case, is exhausted by the requirements of the county’s current expenses for the year for which the levy is made, the county authorities are then authorized to levy whatever (in their discretion) may be necessary to pay the accumulated debts; provided the levy for that purpose shall in any event be sufficient to pay 25 per cent, of such debts. So construing the meaning of section 507, the authorities of Spalding County in this ease might have made a levy of less than $3.95 per $1000, but they were not required to do so;
As has frequently been pointed out by this court, the scheme of the framers of the constitution was to avoid the creation of debts, by closing the transactions of each year by the payment of its obligations year by year; but it must be assumed that their knew that the present section 507 was inserted in the first Code and had been retained in the Code of 1873. Art. 7, sec. 7, par. 1, of the constitution must therefore be construed in the light of the following facts: (1) The framers of the constitution knew the provisions of section 507 (formerly section 515 of the Code of 1873, § 549 of the Code of 1868), and that this was an emergency pleasure designed to meet unforeseen exigencies. (2) They knew that circumstances might arise under which, although there was no casual deficiency, a county might, either by the oversight or mismanagement of the authorities, be without the actual cash with which to discharge just obligations imposed by contracts in which
The ruling in the Southwestern case, supra, is based upon previous decisions of this court in Wright v. Southern Ry. Co., 146 Ga. 581 (supra), and Sheffield v. Chancy, 138 Ga. 677 (supra), as well as the fact that the expressed terms of section 507 of the Code do not require a grand-jury recommendation for the purpose of empowering the county authorities to levy this tax which is necessary to enable the county to pay its debts. We are aware that great stress was laid in many of the earlier cases upon the necessity for a recommendation by two thirds of the grand jury; but the adoption of the Code as a whole had the effect of destroying prior rulings upon the subject. Central of Georgia Railway Co. v. State, 104 Ga. 831 (31 S. E. 531, 42 L. R. A. 518). It would he very interesting as a matter of history to follow the transposition of the code sections by which section 543, now 508 of the Code of 1910, which in the Code of 1868 naturally preceded section 549, now section 507, was made to follow it, as in any system of numbering 508 must follow 507; but this would ac
It is not to be denied that there are a few decisions of this court which casually appear to sustain the contention of counsel to the effect that a debt can not be created by a county since the adoption of the constitution of 1877, except to supply a casual deficiency in revenue, or a debt that has been approved by a vote of two thirds of the voters of the county. But all of these decisions, though not expressly referred to or overruled, have been modified by other decisions which have placed a different construction and meaning upon the word “debt” as employed in section 507 of the Code. Perhaps the first of the decisions calling attention to the peculiar and special meaning of the word “debt” as used in the constitution was that rendered by Mr. Justice Beck in Sheffield v. Chancy, 138 Ga. 677 (supra). In that case it was ruled as follows: “Inasmuch as the injunction granted in the present ease may have the effect of preventing the county authorities from levying a tax necessary to discharge the legal indebtedness of the county, and as the judgment granting the injunction was based upon an erroneous construction of the law appertaining to the controlling question involved in the case, the judgment is reversed and the case remanded for another hearing.” The first item in the tax levy in the Sheffield case was: “To pay indebtedness due, or to become due during the year, or past due, 2 mills.” As appears from the record, the debt referred to in this item was composed of debts, “exclusive of about $3000 to the First National Bank of Arlington,” in the sum of $12,921.55, as follows: “To Dr. J. H. Crozier, borrowed money, $2080.00. To Mrs. R. A. Chipstead, borrowed money, $1000.00. To bonds and interest due Jan. 1, 1911, $3250.00. To Good Roads Machine Co. (contract), $2000.00. To Disinfectant Co. (open account 1910), $1046.00. To Bank of Arlington, $3081.00.” Total, $15,632.95. It further appeared from the record that the revenues for public buildings, etc., would be $9257.80; that the commissioners had expended in that year in the erection of bridges $2030.00, for repairing the court-house $325, none of which building and repairs exceeded $300; that there were oilier bridges which would
“In the original code the levy of taxes for certain specified purposes, such as the erection of court-houses, jails, etc., was authorized without recommendation of the grand jury. By § 481 of that code it was declared: “Justices of the inferior court have power to raise a tax for county purposes, over and above the tax they are hereinbefore empowered to levy, and not to exceed fifty per cent, upon the amount of the State tax for the year it is levied, provided two thirds of the.grand jury at the first or spring term of their respective counties recommend such a tax.’ By § 483 it was declared: “If from any cause such grand jury is not empaneled, or they adjourn without taking any action thereon, or they refuse to make such recommendation sufficient to discharge any judgment that may have been obtained against the county, or any debt for the payment whereof there is a mandamus, or the necessary current expenses of the year, such justices may levy the
“The codifiers of the Code of 1895 took the section with reference to accumulated debts from the position which it had occupied since the adoption of the Code of 1863, and placed it along with sections touching special and extra taxes, in advance of the section authorizing the ordinaries to raise a tax for county purposes, ‘over and above the tax they are hereinbefore empowered to levy, not exceeding fifty per cent, upon the amount of the State tax for the year it is levied.' upon recommendation of the grand jury; and in that position it was adopted in the Code of 1895 and that of 1910. Perhaps the reason for the transposition arose from the radical change made by the constitution of 1877 in regard to the incurring of indebtedness by counties and municipalities. Prior to that time debts had been incurred with great freedom,. and sometimes unwisely and disastrously. The constitutional convention determined to put a check upon extravagance or the incurring. of indebtedness by such political bodies. They therefore provided that no county or municipal corporation should incur any new debt, except for a temporary loan to supply casual deficiencies of revenue, not to exceed one fifth of one per cent, of the assessed value of the property therein, without the assent of two thirds of the qualified voters thereof at an election for that purpose. It was also declared that at or before incurring any bonded indebtedness the county or municipality should provide for the assessment and collection of an annual tax, sufficient in amount to pay the principal and interest of said debt within thirty years from the date of the incurring of said indebtedness. Civil Code (1910), § 6564. As the constitution thus required a permanent provision for the collection of a tax to pay bonded indebtedness, as to such indebtedness it superseded and rendered unnecessary any recommendation of a grand jury in regard to it. As to indebtedness other than bonded indebtedness, this was also prohibited, except upon an election, and excepting a loan to meet casual deficiencies. It being thus provided that debts could not be incurred merely at the will of the ordinary or commissioners, but required the sanction of a popular vote, it is probable that the codifiers therefore thought that a complete change had been made in the status of debts which could be legally incurred by the county, and that they thereafter occupied a fixed position. . . Thus by the constitu
In Citizens Bank v. Rockdale County, 152 Ga. 719 (111 S. E. 434), which was the unanimous decision of a full bench, Mr. Justice Hill, quoting from the opinion of Mr. Justice Cobb in City of Dawson v. Dawson Waterworks Co., 106 Ga. 717 (supra), said: “And if, during the period in which the expense was incurred and the tax was levied, by some oversight the levy was not of 'sufficient amount to pay the expense, the deficiency, casual in its nature, which was contemplated by the constitution arose and could be supplied by a temporary loan.” The language quoted from Mr. Justice Cobb was intended and is accepted as an apt definition of the term “casual deficiency,” but it does not for that reason fail to be also explanatory and definitive to a certain extent of a “legal indebtedness” which may exist, so as to include items which are really in strict parlance also current expenses. It will be noted that in the definition given by Judge Cobb the casual deficiency is first denominated as “the expense,” and in Citizens Bank v. Rockdale County, this court as then constituted unanimously overruled the contention that a failure to meet the
It was held in Mayor &c. of Hogansville v. Planters Bank, 147 Ga. 346 (94 S. E. 310), that a demand note did not create a debt in violation of art. 7, sec. 7, par. 1, of the constitution, so as to defeat the enforcement of the liability evidenced thereby. We think the principle which controlled that ruling sustains the validity of the first item of the levy in the instant case. To quote from the opinion in the case cited: “During the year 1914 the Mayor and Council of Hogansville procured from the Hogansville Light Plant lights which were used for lighting the streets of the town, at an agreed price of $150 per month. At the end of the year there remained unpaid, for the lights thus furnished, the sum of $1400. Taxes were levied' by the municipal corporation in the year 1914, to pay the Hogansville Light Plant for the lights contracted for, together with other current expenses. The taxes not having been paid into the treasury of the corporation, on February 1, 1915, a demand note was executed by the corporation as evidence of the amount due for the lights thus furnished. This note was
The ruling in the Hogansville case illustrates what we have already stated, that liability for current expenses may sometimes create a casual deficiency, and that a just liability on the part of
The most important question for determination in this case is whether the county is permitted, under the provisions of sections 507 and 508 of the Code, to levy a tax of more than 100 per cent, of the State tax levy in the aggregate, or whether, construing the two sections together, only 100 per cent., or an amount equal to the State tax, can be levied under the provisions of these two sections. It is insisted that from the allowance of 100 per cent, under the provisions of section 507 only the remaining per cent, after deducting the rate allowed under the terms of section 508 can be levied; in other words, that if the maximum of 50 per cent, is legally levied under the provisions of section 508, then no more than 50 per cent, of the State tax remains to be levied under the provisions of section 507. This contention is the principal ground upon which the plaintiff in error bases its contention in the cases at bar, and' counsel cite several authorities in the decisions of this court in support of his position. “Extra,” extraordinary, or special taxes, no matter which term is used to denominate the taxes not essentially necessary for carrying on the ordinary functions of government, are not to be computed in the consideration of the question whether a tax levy is excessive when the construction of the term “current expenses” as used in section 507 is involved. While the levy authorized under the provisions of section 508 is denominated by the term “county
At the time the Code of 1861 was prepared there was ample authority (exclusive of the act of 1821) for the levy of the taxes necessary for the ordinary requirements of a county. The following general tax statutes were in force at that.time: 1. The act of February 21, 1796, providing for the levy of a tax not to exceed one fourth of the State tax, one half to be applied to building court-houses and jails, and the other half to the support of the poor and to building bridges. Due to subsequent acts, this act remained in 1860 only as authority to levy a tax of one eighth of the State levy for building court-houses and jails. 2. The act of December 4, 1799, providing for the levy of a tax for building and keeping in repair public bridges. No limit other than the necessary sum. 3. The act of December 5, 1801, providing for the levy of a tax to pay fees of sheriffs, jailers, and coroners, and also for the general support and maintenance of prisoners. No limit other than the necessary sum. 4. The act of November 24, 1818, providing for the levy of a tax not to exceed one eighth of the State levy, for the support of the poor. 5. The act of December 19, 1821, providing for the levy of an “extraordinary” tax, not exceeding fifty per cent, of the State levy, for county purposes, on recommendation of the grand jury.
Concurrence in Part
specially concurring; dissenting in part.
The proper county authorities may levy a tax of not exceeding 100 per cent, of the State tax to pay accumulated debts and current expenses of the county, without a recommendation of the grand jury., Sheffield v. Chancy, 138 Ga. at p. 686; Southwestern R. Co. v. Wright, 156 Ga. 1 (2). In answering a question certified by the Court of Appeals, this court held: “Under the Civil Code (1910), § 507, the proper county authorities can levy a tax of 100 per cent, of the State tax to pay current expenses of the county, but a levy to pay both accumulated debts and current expenses or a levy for either of these purposes must not exceed 100 per cent, of the State tax.” Central of Ga. Ry. Co. v. Wright, 156 Ga. 13. It must be conceded, as is contended by plaintiff in error, that Civil Code § 507 does not, in terms, authorize the levy of any tax. That section does not contain any reference to a tax levy of any kind for any purpose. It reads: “When debts have accumulated against the county, so that one hundred per cent, on the State tax, or the amount specially allowed by local law,
The phrase, “accumulated debts,” as used in the Civil Code (1910), § 507, and under § 513, par. 1, referred to as “legal indebtedness of the county due or to become due during the year, or past due,” means debts or temporary loans to supply casual deficiencies of revenue, as contemplated in article 7, section 7, paragraph 1, of the constitution of Georgia (Civil Code (1910), § 6563); and does not include obligations legally incurred by the county for current expenses or county purposes other than debts or loans to supply casual deficiencies of revenue within the above constitutional provision, whether considered during the year in which they were lawfully contracted or in some year thereafter when still binding obligations of the county due to non-payment as contemplated. Dawson v. Dawson Waterworks Co., 106 Ga. 696; Seaboard &c. Ry. Co. v. Wright, 157 Ga. 722. Under our decisions all lawful obligations are “legal liabilities,” and the county authorities are bound to levy a tax to pay them. The tax therefor is levied as “other lawful charge against the county,” falling under paragraph 9 of section 513. But they are not debts as contemplated in the constitution, nor “legal indebtedness” falling under section 513, par. 1. “With a legal indebtedness and the terms of payment fixed upon a county in a manner prescribed by the constitution, with the right in the creditor to proceed by mandamus to compel the levy of a tax for the purpose of its pay
The proper county authorities “have power to raise a tax for ‘county purposes,' over and above the tax they are herein-
Under the Civil Code (1910), § 510, county authorities are authorized to levy a tax without a recommendation of a grand jury, but the authorization is for specific purposes: (1) to discharge any judgment that may have been obtained against the county, (2) to pay any debt for the payment of which there is a mandamus, and (3) for the necessary current expenses of the year.” (Italics mine.) From the language of this section it will be seen that the taxes here authorized are to meet an emergency, and are limited strictly to those things which are absolutely essential to enable the county to go forward until further authority is obtained. Judgments already obtained against the county must be paid; a mandamus must be obeyed; and lastly, while current expenses are provided for, they are limited to necessary current expenses. No other taxes are authorized to be levied under this section, whatever may be the needs or apparent needs of the county, or whatever may be the judgment of county officials as to the merits of some enterprise deemed beneficial to the public. Moreover, while the amount of this tax is not expressly limited in the code section, under decisions of this court it has been limited to 50 per cent, of the State tax. The limit is placed upon the ground, that, reading all the sections together and considering the limitations in section 508, the legislature did not intend an unlimited tax to be levied for the limited purposes named in section
The majority opinion, in discussing section 510, quotes as follows: “if they [the grand jury] adjourn without taking any action thereon, . . such ordinaries may levy the necessary tax without such recommendation.” This language will lead to confusion, because a portion of the section is omitted which is essential to a proper understanding of it. To say that under section 510 the “necessary tax” may be levied, without also stating that the “necessary tax” is also specified in the same section, will be misleading. The purposes for which the tax may be levied are as stated above.
The ruling by the majority that under the Civil Code (1910), § 507, without a grand-jury recommendation, a tax of more than 100 per cent, on the State tax may be levied to pay accumulated debts and current expenses of the county, is not required in the ease, as may be seen by reference to the statements of facts preceding the majority opinion. It is therefore obiter dictum, and may lead to further confusion.
The foregoing views lead me to dissent from the rulings made by the majority in headnotes 2 and 4, and in the corresponding divisions of the opinion, as well as from the affirmance of the judgment excepted to in the main bill of exceptions. I concur specially in the other headnotes and corresponding divisions of the opinion.
Dissenting Opinion
I dissent from the startling proposition announced by the majority of the court in the second and fourth headnotes and in the corresponding portions of the opinion. The principle thus announced is this: “A county may levy more than 100 per cent, of the State tax, without the recommendation of a grand jury, for the payment of accumulated debts, ‘when debts have accumulated against the county, so that one hundred per cent, on the State tax, or the amount specially allowed by local law, can not pay the current expenses of the county and the debt in one year.' ” From this it follows as a necessary consequence that there is no limit to the amount of tax which a county may levy to pay accumulated debts of the county; and the members of the court who announced the above principle frankly admitted that this consequence followed from their ruling. It must be conceded, and can not be successfully denied, that the proper county authorities
The determination of the question of the amount for which a tax under section 507 could be levied came before this court in Wright v. Southern Ry. Co., 146 Ga. 581 (5); and this ruling was made upon the question: “County authorities may legally levy a tax not exceeding 100 per cent, of the State tax, to pay accumulated debts and current expenses of the county, without any reference to a recommendation of the grand jury. Civil Code (1910), § 507.” Here the ruling is in direct conflict with the principle announced in the fourth headnote of the present decision; but said case was not by a full bench, the then Chief Justice of this court being absent when it was decided. The question came before this court again in Blalock v. Adams, 154 Ga. 326 (114 S. E. 345), and the court made this ruling: “The proper county authorities can legally levy a tax not exceeding 100 per cent, of the State tax, to pay accumulated debts and current expenses.” This decision was by a full bench of six Justices, including the
This ruling in the present case can not be differentiated from the rulings in the cases cited. The majority, or at least three of the Justices, cite section 507 of the Code to support the ruling-embraced in the fourth headnote. That section provides for the levy of a tax for the payment of accumulated debts and current expenses. We have held in the cases cited that a tax levied under this section to pay accumulated debts and current expenses can not exceed one hundred per cent, of the State tax. It takes a bold flight in judicial aeronautics, or a wonderful feat of judicial acrobatism, to hold that this court was right in holding, in the decisions cited, that this tax could not exceed one hundred per cent, of the State tax for the two purposes of paying accumulated debts and current expenses, and to hold in this case that under said section
Moreover, the decisions cited in support of this dissent, as has already been stated, were, with the exception of the first ease, by full benches. Under the constitution of this State they thus became binding, and can not be overruled or materially modified except with the concurrence of six Justices. Acts 1896, p. 42; 5 Park’s Code, § 6207. The ruling set out in said headnote purports to be one made by the majority of this court; but in fact it is not a ruling of the majority. The Chief Justice, Presiding Justice Beck, and Justice Atkinson agree to said ruling; but they do not constitute a majority of the court. Mr. Justice Hill holds that the question ruled is not involved in the case, and .for this reason does not join in this ruling. Mr. Justice Gilbert and the writer dissent from this ruling. For this reason said headnote and the corresponding division of the opinion should not go out as embodying a ruling made by the court. In this situation the alleged confusion existing in the decisions of this court will be confusion worse confounded.
I concur in the judgment of affirmance; but I do not put this concurrence upon the ruling from which I dissent.
Concurrence Opinion
concurring specially. I agree that under the facts of this case more than one hundred per cent, can be levied up to the amount of the tax levy in this case (which is less than 150 percent.) ; but I do not think we ought to hold that any amount over 100 per cent, can be levied; for that question is not now involved. See Southwestern Railroad Co. v. Wright, 156 Ga. 1 (supra).