86 Ga. 730 | Ga. | 1891
This was an action by the church, a body corporate and politic, against the city7-, brought in February, 1887, to recover the sum of $616.87, the amount paid by the plaintiff to the defendant in January, 1885, in satisfaction of a JL fa. which the city had issued against, and caused to be levied upon, the church building and the premises on which the same was situate, said premises fronting and abutting on Marietta street. The fi. fa. was issued for the pro rata share of these premises of the cost incurred in the year 1883 by the city in paving with Belgian blocks the roadway or street proper on which the premises abutted. The payment was made under protest, and to prevent a sale of the property in pursuance of the levy. The street was paved by virtue of the act of September 3d, 1881, amending the charter of. the city, and the provisions of the act were fully complied with. The church building was used only for church purposes and religious worship. At the trial the facts were agreed upon and reduced to writing,
The act in question (Acts of 1880-1, p. 358) was construed by a majority of this court as then constituted, in Trustees, etc. v. The City of Atlanta, 76 Ga. 181; and that decision was afterwards held by a full bench to be conclusive upon the parties in that case, the same case having again come up for review. 83 Ga. 448. The principle of res adjudícala made the latter ruling a necessary corollary to the former, whether the first in order was correct or incorrect. But as the present case, although it involves the same question touching the right construction of the act of 1881, is a new case and between different parties, or with one of the parties different, the duty of construing the act de novo eaunot be declined by the present bench, save upon the ground that the former construction is satisfactory, or if not, that it should be acquiesced in because of some mischief or public inconvenience likely to result from adopting and promulgating a different construction after the first has stood undisturbed for a period of nearly five years.
The'rule of stare decisis is a wholesome one, but should not be used to sanctify and perpetuate error in so short a term as five years, without very weighty reasons in behalf of public policy. At the last term of this court? we recognized the rule, in Scott v. Stewart, 84 Ga. 772, as a right rule of decision where many transactions of the public at large, based on an exposition of the law
The act, after conferring power to grade, pave, macadamize and othei’wise improve the streets, invests
It only requires that language shall be taken in its ordinary signification, in conformity to the rule of construction laid down in section 4 of the code, for us to be able to hold, not as a conjecture, but with absolute certainty, that the terms, “ real estate abutting on each side of the street improved,” include all lands so abutting, no matter to whom they belong nor how the buildings upon them may be occupied or used. Church property, therefore, is manifestly within the letter of the act, and as clearly within it as any other property whatsoever. The grant of power to assess it is no less express than is the grant of power to assess any other. The act neither makes nor hints at any discrimination, but uses words which embrace all real estate as appropriately and completely as they embrace any part of the same. It would be as consistent with the letter of the statute to deny that it comprehends any real estate at all, as to deny that it comprehends all that abuts on the street. This is the plain truth ; and yet the opinion of the court in 76 Go.. pp. 187, 188, launches the argument by referring to the rule that no corporation can exercise any power not expressly conferred or necessarily implied, and after observing that places of religious worship, etc. are not brought directly by name within the provisions of the act, adds, “ and we do not think they can be brought within it by construction or necessary implication, unless it is made to appear that the property so exempted from taxation is used for pur- . poses of ‘ private or corporate profit or income.’ ” This seems to be the fundamental error of the opinion ; it treats the city as invoking implication, whereas, the city points to an express grant, and the church invokes implication to limit the words of the grant. True,
It may be said, however, that the opinion we are reviewing does not cite the constitution, and the statute under it exempting church property from taxation, as authority, direct or indirect, but only as evincing on the part of the State a friendly spirit and disposition toward religious institutions and instrumentalities. For this purpose we concede the citation would be legitimate. The constitution defines very explicitly the
Glancing now at the current of authority, let us see how the stream runs. In People v. McCreery, 34 Gal. 456, the Supreme Court of that State say: “The meaning of taxation must be kept in view, and that is, a charge levied by the sovereign power upon the property of its subject. It is not a charge upon its own property, nor upon property over which it has no dominion. This excludes the property of the State, whether lands, revenue or other property, and the property of the United States.” Accordingly, it was held in Doyle v. Austin, 47 Cal. 353, that a statute providing for the opening of a street, and for the payment of the expenses by assessment upon the lands benefited, was not vitiated by an express exception from liability in making the assessment of lands belonging to the United States, the State of California, and the city, respectively, although it appeared by the report of the assessors that these lands would be benefited to the extent of $800,000.00. That property belonging to the public, and held for public uses, is exempt from taxation when not expressly subjected thereto, is held in the following cases: City of Rochester v. Town of Rush, 80 N. Y. 302; Directors of Poor v. School Directors, 42 Pa. St. 21; City of Louisville v. Commonwealth, 1 Duvall, 295. The same rule prevails as to assessments for local improvements of a public nature. Inhabitants of Worcester v. Mayor, etc. of Worcester, 116 Mass. 193; County Commissioners v. Board, etc. of Maryland Hospital, 62 Md. 127, 7 Am. & Eng. Cor. C. 300; State of Connecticut v. City of Hartford, 3 Am. & Eng. Cor. C. 610, the editor citing 49 Conn. 89, which is a miseitation. In Missouri, it would seem, an exemption is not implied in favor of all public property. St. Louis Public Schools v. St. Louis, 26 Mo. 468. And in Illi
Implied exceptions in favor of public property also prevail over general words in a statute founded on the exercise of the power of eminent domain. Mayor, etc. of Atlanta v. Central R. R., 53 Ga. 120; St. Louis, etc. R. R. Co. v. Trustees, 43 Ill. 303. "We thus see that to engraft an exception upon the amended charter of Atlanta in favor of public property has the sanction of authority. But no such rule prevails, so far as we know or have been able to ascertain, in favor of private property used for religious purposes. In the following cases churches, although not expressly named in assessment statutes, were held to be subject to assessment for local improvements, notwithstanding they were exempt by express law from general taxation : Matter of the Mayor, etc. of New York, 11 Johns. 77 ; (and see Harlem Presbyterian Church v. Mayor, 5 Hun, 442 ; Matter of Second Ave. M. E. Church, 66 N. Y. 395; People v. Mayor, etc. of Syracuse, 2 Hun, 433); Northern Liberties v. St. John’s Church, 13 Pa. St. 104; Le
If express words are requisite to exempt private property from general taxation, there is no reason why like words are not equally necessary to exempt it from assessments. Lima v. Cemetery Ass’n, supra. Instances of such express exemption are furnished by State, etc. v. Mayor, etc. of Newark, 36 N. J. L. 478 ; State, etc. v. City of St. Paul, 36 Minn. 529. But in City of Chicago v. Baptist Theological Union, 115 Ill. 245, 13 Am. & Eng. Cor. C. 409, it was held that even an express exemption from assessment could not be granted under the constitution of Illinois because violative of the principle of equality. Inasmuch as the constitution of Georgia neither expressly nor by implication lays down any principle whatever touching local assessments, being entirely silent on the subject, there would seem to he no defect of power in the legislature to spare churches