165 Ga. 631 | Ga. | 1928
Lead Opinion
The Court of Appeals held that 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. Central of Ga. Ry. Co. v. Wright, 36 Ga. App. 386 (137 S. E. 95). The present certiorari has been sued out to review this decision of that court. The railway company contends that a county may in no event levy a tax in excess of 50 per cent, of the State tax (2.5 mills) for current expenses, and that this is true even though no levy is made for the payment of debts.
This brings us to construe sections 507 and 508. By section 508, “The ordinaries 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
The tax which can be levied by the ordinaries under section 508, is by its very terms one “over and above the tax they arc hereinbefore empowered to levy.” The language, “the tax they are hereinbefore empowered to lev3>-,” in this section, clearly refers to a tax which they are empowered to levy under some preceding provision in the Code. This language refers to some law going before, to some power previously given, and to some tax which could be levied under authority previously conferred in the Code upon these officers. Section 508 is under Sec. 2. Art. 1, Chap. 7, which deals with county revenue and sources of taxation. Turning to sections 504, 506, and 507, of sec. 1 of this article, which deals with “Special and Extra Tax,” we find that the ordinaries under the first of these sections are authorized to levy an extra tax sufficient to carry into eifect the purposes of sections 399 and 400, without the recommendation of a grand jury, whenever the necessities arise; that under section 506 these officers are authorized to levy a tax for the support of the paupers of their counties, not to exceed twenty-five per cent, of the State tax; and that under section 507 these officers, whenever the tax levied under section 508 is insufficient, can levy a special tax, which may equal the State tax, to pay accumulated debts and current expenses. These three sections precede section 508. Each of them authorizes the levy of a tax for a county purpose, and each occupies a place in the Code before section 508. So, construing sections '504, 506, 507, and 508 together, as they appear in the present Code and as they
It is true that section 507 does not expressly authorize the levy of a tax of 100 per cent, of the State tax for the payment of accumulated debts and current expenses. It clearly contemplates the payment of that percentage of the State tax for these purposes. In effect, this section makes it the duty of the proper county authorities to use an amount equal to 100 per cent, of the Stfffce tax in paying off accumulated debts and current expenses, and this amount, as we have seen, is to be over and above the amount of the fifty per cent, of the State tax which can be levied and collected under section 508. In Tucker v. Justices of the Inferior Court, 34 Ga. 370, 374, this court, speaking through Judge Harris, said: “We have not been able to find either a general or local law, previous to 1860, conferring the power on the inferior court to levy a tax to pay petit jurors. Yet, if the duty of compensating them is imposed on the county treasury, the moneys arising from verdicts and confessions in civil cases, it is apprehended, will be applied to such purpose, and exhausted, before a tax for this purpose will be imposed. We are not sure but that the duty to pay petit jurors involves, necessarily, the right to tax to pay the indebtedness on this account which may remain.” In Arnett v. Griffin, 60 Ga. 349, 352, this court, speaking through Judge Jackson, said: “That act authorizes the bonds to be issued by the commissioners, and requires them in the 2d section thereof to provide for the prompt payment of the bonds — principal and interest. How provide? We know of no way except by taxation. The act of 1872, then, empowers the commissioners to tax without reference to the grand jury; and we hold that this tax is authorized by this local law and stands independent of the general law, and the
But it is insisted that a tax can be levied under section 507 only for the purpose of paying debts, and not for the purpose of paying current expenses. Counsel for the railway company assert that to construe this section as authorizing the levy of a tax to pay debts involves a considerable stretch of the imagination, but that it can not by any stretch of the imagination be construed to embrace power to levy a tax to pay current expenses. In our opinion it requires no greater stretch of the imagination to construe this section as authorizing the levy of a tax to pay current expenses than it does to construe it as conferring the power to levy a tax to pay accumulated debts. This section refers to the payment of both accumulated debts and current expenses: and the codifiers, in putting it into the Code of 1863, evidently contemplated the levy of a tax for both purposes. It is just as important, if not more so, to pay the current expenses of county government as it is to pay debts which the counties have permitted to accumulate.
But it is insisted that the decisions of this court, upon the question of the amount of tax which can be levied by counties to meet current expenses, are in conflict; that its earlier decisions
The principle embodied in the Civil Code (1910), § 507, is not of statutory origin, so far as we have been able to ascertain. It seems to have had its origin in codification. It has appeared in all of the Codes of this State in totibem verbis. Code 1863, § 487; Code 1868, § 549; Code 1873, § 515; Code 1882, § 515; Pol. Code 1895, § 398. It did not appear in the Codes preceding that of 1895 in the same order in which it appeared in that Code, and in which it appears in the present Code. In the Codes preceding that of 1895 it followed, but not immediately, the sections embracing the principle embodied in section 508 of the present Code. The codifiers of the Code of 1895 took this section from the position, which it had occupied since the adoption of the Code of 1863, and placed it with the previous sections authorizing the levy of special and extra taxes, and in advance of section 508. The previous sections authorized the levy of special and extra taxes, and embraced the provisions appearing in sections 504 and 506 of the present Code; and the principle embraced in section 507 of the
In determining the question whether the decisions of. this court are in conflict upon the question whether or not the counties can levy more than fifty per cent, of the State tax to meet current expenses, we must bear in mind the above change in the position of these sections 507 and 508, and the necessary change in their meaning and construction. Bearing in mind the above facts, we come to consider the cases upon which counsel for the railway company rely to support the proposition that a county can not now levy a tax greater than fifty per cent, of the State tax to meet current expenses. The first of these cases, Barlow v. Ordinary, supra, was decided in 1873. The Code of 1868 was then in force. The court was dealing with the proper construction of sections 536 and 543 of that Code. Section 536 embraced the provision contained in section 504 of the present Code. Section 543 embraced the provisions contained in section 508 of the present Code, as changed by the transposition of sections 507 and 508 of the present Code. The tax dealt with in that decision was levied
The decision in Waller v. Perkins, supra, was rendered in 1874; and the sections therein referred to were parts of the Code of 1873. This is the first decision, so far as we have been able to find, which deals with the construction of section 507 of our present Code, which appeared in the Code of 1873 as section 515. In dealing with it Judge McCay said: “As we read section 515 of the Code, the real difficulty is to put any limit to the power of the county authorities to lay taxes for the payment of debts really due. Its letter would seem to indicate that at least twenty-five per cent, of all accumulated debts must be paid every year, without any limitation as to the per cent, on the State tax that it may take to do this. But in view of long-established practice and usage of the legislature to limit the taxing power of the counties, even with the assent of the grand jury, we are of the opinion that the limitation of one hundred per cent, in this section (515) is a limit on the grand jury itself. That fifty per cent, may be laid, as provided in section 511, and with the recommendation of the grand jury it is competent, for the purposes of section 515, to go as high as one hundred per cent.” In that case the court seems to have held, as the law then stood, that a tax levy under sections 511 and 515 of the Code of 1873 (sections 510 and 507 of the present Code) could not exceed 100 per cent, of the State tax. This decision was rendered by two Judges. Judge Trippe took no part in its rendition. Being a two-judge decision, it is not binding
In Sullivan v. Yow, supra, the attack upon the tax levy was upon the grounds that the order levying the tax did not specify the per cent, levied for each specific purpose as required by section 405 of the Code of 1895 (section 514 of Code of 1910), and that the levy, being made under section 401 of the Code of 1895 (section 510 of the Code of 1910), exceeded fifty per cent, of the State tax. Tt will thus be seen that this court was not dealing in that case with a levy of tax under section 507 of the present Code. In Wright v. Southern Ry. Co., supra, the levy was made under the Civil Code (1910), § 508, for county purposes, and was for 100 per cent, of the State tax. It was properly held that under said section the tax could not be levied for more than fifty per cent, of the State tax. This court was not dealing-with and did not undertake to construe section 507. The same is true of the decision in McGregor v. Hogan, supra, where this court stated that section 507 was not applicable under the facts of the case; but the question of the construction of that section was not involved and was not decided. The decision in McMillan v. Tucker, supra, does not support the position of counsel for the railway company. It supports the contrary position. This court, speaking through Chief Justice Fish, said: “The proper county authorities have power to raise a tax for county purposes, over and above the tax provided in §§ 504, 506, and 507 of the Civil Code, not to exceed fifty per cent, 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 tax. Civil Code, § 508.” The court distinctly recognized that the tax authorized under section
The decision in Blalock v. Adams, supra, does not support the view that a tax to pay accumulated debts and current expenses can not be levied in excess of fifty per cent, of the State tax. On the contrary this court held: “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; and an item of a tax levy for such purposes should not be considered in determining whether the county authorities have exceeded their power to levy taxes for county purposes under the Civil Code (1910), § 508.” In Carter v. Shingler Realty Co., supra, this court was dealing with a tax levied under § 508. It held that a levy of a tax for tick eradication was not one for county purposes under this section, and that the sum of this tax and other items of tax levied for county purposes under that section should not exceed fifty per cent, of the State tax, “except as otherwise provided by law.” This court was not dealing with section 507, which creates one of the exceptions to section 508, to which reference was briefly made in headnote 3 of that decision. The decision in Seaboard Air-Line Ry. Co. v. Wright, supra, does not support the view that a tax can not be levied under section 507 for the payment of accumulated debts and current expenses in excess of fifty per cent, of the State tax. In that case the court was dealing with “the levy of a tax for the purposes specified in section 508.” That section provides for the levy of a tax for current expenses and other purposes, as we have seen. This court distinctly held that a tax levy under section 508 can not exceed fifty per cent, of the State tax, and that the tax assessment dealt wdth in that case “did not purport to levy a tax to pay current expenses and debts of the county, as authorized by the Civil Code (1910), § 507.” The court distinctly recognized the authority to make a levy to pay current expenses and accumulated debts under section 507, the levy not to exceed 100 per cent, of the State tax.
We now pass to a consideration of the cases which lay down the doctrine that a tax to pay accumulated debts and current expenses,
Under the previous decisions above referred to, we had held that under section 507 a tax not exceeding 100 per cent, of the State tax could be levied to pay accumulated debts and current expenses. It seems to us to necessarily follow that such tax could be levied to pay current expenses. If it requires a levy of 100 per cent, to meet current expenses, and there are no accumulated debts to pay, we see no good reason why such tax could not be levied to pay current expenses. If there are current expenses and accumulated debts, then one fourth at least of the accumulated debts must be
Applying the rulings above made, we are of the opinion that the judgment of the Court of Appeals was not erroneous for any reason assigned.
Judgment affirmed.
Dissenting Opinion
dissenting. The exception is by writ of certiorari to a judgment of the Court of Appeals, bolding: “'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.’ Central of Ga. Ry. Co. v. Wright, 156 Ga. 13 [supra]. The court did not err in this case in 'overruling’ the affidavit of illegality and ordering the fi. fa. to proceed.” The
“3rd. To pay sheriffs, jailers, and other officers fees legally dne by county, 1/2 mill.
4th. To pay coroners’ fees for holding inquests, 1 mill.
5th. To pay expenses of county for bailiffs of courts, nonresident witnesses in criminal cases, fuel, servant’s hire, stationery, etc., 2/5 mill.
6th. To pay jurors a per diem compensation, 1/2 mill.
. . 8th. To pay other lawful charges against the county, 2-1/4 mills. Thus itemized: (a) Salaries of county court, judge, solicitor, and per diem compensation for comm’rs of roads and revenues, 1-1/10 mills, (b) To pay chmn. board of comm’rs., camp physician, and court stenographer, 3/5 mill, (c) For office supplies and records of various county officers, 1/10 mill, (d) For compensation tax-collector, tax-receiver, for expenses of election, and lunacy proceedings, 9/20 mill.”
The ground of attack is that the taxes are “levied for the payment of the regular ordinary annual current expenses of the county for 1925. None of them are levied for any general county purpose other than the payment of regular, ordinary current expenses. Their aggregate is therefore limited by law to 50 per cent, of the State tax, or $2.50 per thousand; and since the aggregate levied in items 3, 4, 5, 6, and 8 is $3.75 per thousand, the levy made in said items is illegal and void to the extent of $1.25 per thousand.” The several items of the tax levy which are attacked are for “current expenses” and clearly come within the meaning of “county purposes” as those terms are employed in the Civil Code (1910), §§ 507 and 508. Seaboard Air-Line Ry. Co. v. Wright, 157 Ga. 722 (supra). As all the items are included in “county purposes,” the question is as to the authority of the county officers to levy a tax for “county purposes” in an amount exceeding fifty per cent, of the State tax levied for the year. It is declared in the Civil Code (1910), § 507: “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.” It is declared in § 508: “The ordi
All of these sections of the Code of 1863 were carried forward into the Code of 1895, in identical language. But in the meantime the act of 1881 (Acts 1880-1881, p. 49) was adopted. The caption of this act is: “An act to enlarge the powers of county authorities in this State, as to levying taxes for pauper purposes.” The body of the act declares: “That, from and after the passage of this act, the county authorities who are charged with the control of the finances of their county shall be and they are hereby authorized to levy a tax for the support of the paupers of their county, which shall not exceed twenty-five per cent, upon the amount of the State tax for the year such pauper tax is levied.” This act was also confined to -a particular purpose, and not intended to affect the limit of “not exceeding fifty per cent, of the State tax” that might be levied for general county purposes. So in codifying this act in the Code of 1895 it was given the position of § 397, thus preceding § 399, which was the same as § 481 of the Code of 1863. Upon reasoning as indicated above, neither the provisions for levy of the tax to support the poor, nor the adoption of the Code of 1895, affected the limit of authority to levy a tax for general county purposes, as first authorized by the act of 1821, supra. As already indicated, the Civil Code of 1910 contains all the provisions of the Codes of 1863 and 1895 cited above, and they appear in that Code as §§ 399, 400, 504, 506, 508. So, in the light of the history of section 508 of that Code, the statute authorizes the levy of tax for county purposes, including “current expenses” of the county, such as are involved in this case, but limits the amount to “not exceeding fifty per cent, of the State tax” levied for the year. This was the basis of the ruling in Seaboard Air-Line Railway Co. v. Wright, 161 Ga. 136 (supra), where it was held: “The levy of a tax for the purposes specified in section 508 can not exceed fifty per cent, of the State tax. This limit extends to current expenses. Waller v. Perkins, 52 Ga. 233; McMillan v. Tucker, 154 Ga. 154 (4, 9) (113 S. E. 391); Carter v. Shingler Realty Co., 157 Ga. 118 (2) (120 S. E. 784).” In
Section 508, not being a provision of the constitution and being only a statute, could of course be amended, or other acts could be passed which would expressly or by necessary implication authorize levy of taxes for county purposes in specific instances with or without limit in amount. Immediately preceding section 508 (which was section 481 in the Code of 1863 and section 399 in the Code of 1895) was section 507, which for convenience will again be quoted, as follows: “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 debts in one year, they shall be paid off as rapidly as possible, at least twenty-five per cent, every year.” The words “levy a tax” do not appear in this section, nor does the section purport to affect the limitation on the amount of taxes for general county purposes referred to in section 508. In this section the word “debts,” as employed in the first line, is the principal noun to which the pronoun “they” in the fourth line relates; and “they” is the subject of the verb “shall be paid,” as employed in the same line. The plain common-sense meaning is that when “debts” have accumulated, so that one hundred per cent, on the State tax, or the amount specially allowed by law can not pay the current expenses and the debts in one year, the debts
In rendering their decision the Court of Appeals cited the decision of this court in Central of Georgia Railway Co. v. Wright, 156 Ga. 13 (supra), in which it was hold: “1. 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. 2. The tax authorized by the above section is in addition to that provided in the Civil Code (1910), § 508.” That decision was in response to three questions propounded by the Court of Appeals. The first question was: “Where, without a recommendation from the grand jury, an order
If in the case now under consideration the judgment of the Court of Appeals should be affirmed, the county authorities can levy a tax for “county purposes” to include the ordinary “current expenses” enumerated at the beginning of this opinion, for an amount exceeding fifty per cent, of the State tax levied for the year. If this can be done, what has become of the limitation provided by the act of 1821 and still preserved in section 508 of the Code of 1910? Article 1, Section 3, of Chapter 7 of the Code of
Concurrence Opinion
I concur in the result and judgment in the case, but not in any statement from which an inference can be drawn that the tax prescribed in section 507 of the Code is restricted to only 100 per cent, upon the State tax; and I do not concur in the construction placed upon the .previous decisions of the court, as embodied in the opinion, so far as relates to the rulings in Central of Georgia Ry. Co. v. Wright, 156 Ga. 13, and Seaboard Air-Line Ry. Co. v. Wright, 161 Ga. 136 (supra). It is my opinion that the decision in the first of these two cases was broader than the facts which were under review, and in so far as it stated that there might be a limit' of 100 per cent, it was 'obiter dictum.