Tеn years after DeKalb County voters approved the imposition of a one-percent homestead option sales and use tax (“HOST”) in the special tax district coterminous with the geographical boundary of DeKalb County, see OCGA § 48-8-102 (a), enacted pursuant to Art. IX, Sec. II, Par. VI, Ga. Const. 1983, the Legislature amended the Homestead Option Sales and Use Tax Act, OCGA § 48-8-100 et seq., so as to provide for changes in the manner in which HOST proceeds are distributed in those special HOST districts in which a “qualified municipality” 1 was thereafter created. See Ga. L. 2007, p. 598, § 1 et seq. (hereinafter “H.B. 264”). In 2008, the City of Dunwoody was created in DeKalb County. See Ga. L. 2008, p. 3536/S.B. 82. The creation of this qualified municipality activated the 2007 legislative *794 changes H.B. 264 made to the HOST Act. DeKalb County filed suit in July 2008 against the State of Georgia, its governor and the Georgia Department of Revenue’s commissioner seeking to enjoin those changes and to obtain a declaration that the pertinent H.B. 264 provisions in the HOST Act were unconstitutional. The trial court after a bench trial dismissed the Statе of Georgia as a party and ruled against DeKalb County as to the remaining defendants. This appeal ensued.
1. At the outset we recognize that “ ‘all presumptions are in favor of the constitutionality of an act of the legislature’ (cit.),” Mayes v. Daniel,186 Ga. 345 , 350 (1) (198 SE 535 ) (1938) and that “before an Act of the legislature can be declared unconstitutional, the conflict between it and the fundamental law must be clear and palpable and this (C)ourt must be ‘clearly satisfied of its unconstitutionality.’ (Cits.)” City of Calhoun v. North Georgia Elec. &c. Corp.,233 Ga. 759 , 760-761 (213 SE2d 596 ) (1975). Moreover, because statutes are “presumed to bе constitutional until the contrary appears, . . . the burden is on the party alleging a statute to be unconstitutional to prove it.” . . . Dee v. Sweet,268 Ga. 346 , 348 (1) (489 SE2d 823 ) (1997).
Dev. Auth. of DeKalb County v. State of Ga.,
2. Our review of the hearing transcript establishes, contrary to appellant’s contention, that the trial court did not clearly err whеn it found as fact that H.B. 264 would not result in any gross tax increase to the unincorporated areas of DeKalb County. See generally OCGA § 9-11-52 (a).
3. Appellant argues that voter approval of HOST creates a binding obligation between voters and a county’s governing authority in the same manner that voter approval of a special local option sales tax (“SPLOST”) mandates the use of those funds for the projects designated in the resolution or ordinance calling for the imposition of the SPLOST. See OCGA § 48-8-111 (a) (1);
Johnstone v. Thompson,
4. Relying on
Martin v. Ellis,
5. Appellant next asserts that the trial court erred by holding that H.B. 264 is not the pаyment of a gratuity in violation of Art. Ill, Sec. VI, Par. VI (a) (“[e]xcept as otherwise provided in the Constitution . . . the General Assembly shall not have the power to grant any donation or gratuity”). Appellant argues that H.B. 264 obligates it to fund to the City of Dunwoody a certain mandatеd “equalization” portion of the HOST; that this payment is without benefit of an intergovernmental agreement; and that, because no consideration flows to appellant for the equalization payment to the City, the General Assembly is providing the City with a gratuity. This argument, however, fails to reflect the true nature of the statutory scheme set forth in the HOST *796 Act as amended by H.B. 264. As the new Code section to that Act expressly provides, it was the intent of the Legislature
that the proceeds of the [HOST] be distributed equitably to the counties and quаlified municipalities such that the residents of a new incorporated municipality will continue to receive a benefit from that tax substantially equal to the benefit they would have received if the area covered by the municipality had not incorpоrated.
OCGA § 48-8-101.1/H.B. 264, § 2 at Ga. L. 2007, p. 599. As provided in the HOST Act, the sales and use tax levied pursuant thereto is “exclusively administered and collected by the commissioner [of the Department of Revenue].” OCGA § 48-8-104 (a). The Act as amended then sets forth the formula to be used by the commissiоner and the governing authority for the county in which a qualified municipality is located in order to calculate that qualified municipality’s share of the capital outlay proceeds of the HOST. See OCGA § 48-8-104 (d), (e). Once that share of the capital outlay proceeds is calculated, the commissioner is directed to distribute that amount to the governing authority of each qualified municipality located in the special district, id. at (d) (1), and those proceeds “shall be expended for the purpose of funding сapital outlay projects of such municipality.” Id. As the trial court correctly recognized, under the HOST Act as amended, the City of Dunwoody, just like appellant, will act as an agent for the special tax district coterminous with the geographical boundaries of DeKalb County in expending HOST revenues for capital outlay projects that benefit the special tax district.
2
See
City of Decatur,
supra,
In interpreting our Constitution’s gratuity paragraph, this Court has adopted the “ordinary definition of ‘gratuity’ as ‘(s)ome-thing given freely or without recompеnse; a gift.’” (Footnote omitted.)
Garden Club of Ga. v. Shackelford,
6. The trial court correctly held that H.B. 264 is not local legislation subject to the notice requirements of OCGA § 28-1-14. See also Art. Ill, Sec.
V,
Par. IX (General Assembly shall prоvide by law for advertisement of notice of intention to introduce local bills).
Fleming v. Daniell,
7. Appellant contends the trial court erred by holding that H.B. 264 does not violate Art. IX, Sec. II, Par. VI of the 1983 Georgia Constitution, which authorizes the creation of special tax districts. Art. IX, Sec. II, Pаr. VI provides in pertinent part that
special districts may be created for the provision of local government services within such districts; and fees, assessments, and taxes may be levied and collected within such districts to pay, wholly or partially, the cost of providing such services therein and to construct and maintain facilities therefor.
(Emphasis supplied.) We agree with appellant that a tax levied and collected within a special district pursuant to this paragraph can only be used for the cost of providing services within that district. However, we do not agree with appellant’s argument, based on the emphasized language, that this paragraph requires that the entity levying the special district tax be the same one providing the services within the district, such that funds emanating from the HOST in this case may be used for services in that part of DeKalb County that is now within the сorporate borders of the City of Dunwoody only when appellant and the City jointly so agree. Art. IX, Sec. II, Par. VI contains no language identifying any particular entity as the exclusive provider of local government services. In the absence of any *798 express language excluding any local government other than the entity levying the tax, we decline to construe that paragraph as containing such a limitation. 3
8. Finally, appellant asserts that the Legislature by enacting H.B. 264 has preempted and violated the purpose for which DeKalb County voters approved the HOST. Clearly, the residents of DeKalb County, at the time they cast their votes in favor of the HOST, did not anticipate that the Legislaturе would thereafter change the distribution of the tax. Nor, despite the effect of H.B. 264, did the Legislature provide the residents of the only two counties that currently had HOSTs, DeKalb and Rockdale, the opportunity to reconsider their initial vote to impose the HOST before allowing the changes in H.B. 264 to be implemented. However, “[i]n determining constitutional questions, like others, the courts are not permitted to concern themselves with the wisdom of an act, . . . but are confined to settled principles of law under the long-estаblished general rule . . . .”
Mayes v. Daniel,
supra,
Judgment affirmed.
Notes
A “qualified municipality” is a municipality “created on or after January 1, 2007, lying wholly within or partially within a county.” OCGA § 48-8-101 (4).
Nothing in OCGA § 48-8-102 (a), creating special tax districts pursuant to Art. IX, Sec. II, Par. VI for purpоses of the HOST Act, recognizes any special tax district other than the ones “eorrespond[ing] with and . . . conterminous with” the geographical boundaries of the 159 counties of this State. Thus, consistent with our duty to construe a statute in a manner which upholds it as constitutiоnal if it is possible,
Cobb County School Dist. v. Barker,
Moreover, we note that Art. IX, Sec. II, Par. VI speaks in terms of taxes “levied
and
collected.” (Emphasis supplied.) While appellant is the entity that levies thе HOST here, it is the commissioner of the Department of Revenue exclusively who collects it. OCGA § 48-8-104 (a) (sales and use tax levied pursuant to HOST Act “shall be exclusively administered and collected by the commissioner”). Under appellant’s interpretation of this paragraph, appellant could not alone provide any services within the district but could do so only together with the commissioner. We decline to interpret Art. IX, Sec. II, Par. VI in this fashion. See generally
Adams v. Hazelwood,