153 Ga. 1 | Ga. | 1922
At the beginning of the year 1921, the mayor and council levied an ordinary tax for the full amount which was authorized under the municipal charter. At the time this was done it was estimated that the amount of taxes so levied would not meet all of the expenditures contemplated by the mayor and council in meeting demands upon the city and current expenses for the year 1921. Thereupon an additional tax was levied, on the hypothesis that the provisions of the charter of the city relating to an emergency tax would authorize the levy of such additional tax. A copy of the provision .of the charter referred to follows: “In addition to the ordinary tax herein allowed, the mayor and councilmen and aldermen may, in case of emergency,
1. The first question depends upon a proper construction of the provision of the charter relating to the levy of an extraordinary ■tax. In a somewhat similar case it was said: “We are here pealing with the -taxing power, proceedings in which are always in 'invitum,— a power which, when exercised under delegated authority by a municipal corporation, is always subject to rigid scrutiny, first, to determine whether the power actually exists; and, second, to determine whether it has been exercised under the limitations imposed. For, says Sutherland, treating of acts delegating the power of taxation: ‘ Acts of this class are construed with great strictness. Two concurring principles leading to strict construction apply. Such acts affect arbitrarily private property, and are grants of power.’ 2 Lewis’s Sutherland on Stat. Constr. § 541.” San Christina Investment Co. v. San Francisco, 167 Cal. 762 (141 Pac. 384, 52 L. R. A. (N. S.) 676, 682). The principle above applied is well recognized, and lias been frequently applied in this State. Albany Bottling Co. v. Watson, 103 Ga. 503 (30 S. E. 270); Garrison v. Perkins, 137 Ga. 744, 752 (74 S. E. 541). The case of San Christina Investment Company v. City and County of San Francisco, supra, involved construction of the charter of the City and County of San Francisco, and the •validity of an alleged emergency tax. Section eleven of the charter there construed provided, in substance, that the annual levy “ shall not exceed the rate of $1 on each $100 valuation of the property
The foregoing discussion is pertinent to the case under consideration. Applying the principles therein stated, the provision of the charter of the City of Atlanta relating to an extraordinary tax does not provide that the mayor and council of the city may levy an extraordinary tax if the mayor and council shall declare an emergency to exist, but the provision is that an extraordinary tax may be levied, “in case of emergency, to be judged of by them.” If an emergency exists in fact, and if the mayor and council shall so declare, the tax may be levied; if however no emergency exists, the declaration by the mayor and council that an emergency exists will not authorize the tax. The provision of the charter does not expressly declare that the finding of the mayor and council that an emergency éxists shall be conclusive. The express provision of the charter is “in case óf emergene}',” and the legislature did not intend to leave to mere implication the power to conclusively declare the existence of an emergency, in view of the express declaration that an additional tax is authorized “in case of emergency.”
Judgment affirmed.