137 Ga. 744 | Ga. | 1912
Lead Opinion
(After stating the foregoing facts.) The most important question in this case grows out of the attack made upon the validity and the sufficiency of item 2 of the tax levy brought into consideration, and the issue which is joined by counsel for the defendant upon the attack made. The right of the county of Banks to take over its quota of convicts under the provisions of the act of the General Assembly relating to the employment of convicts, approved September 19, -1908, hereafter referred to as the
Thus far our opinion coincides, in the main, with the position taken in this case by counsel for the defendants. - But we can not go to the extent of holding that the ordinary of Banks county was authorized to purchase the necessary materials, such as steel, timber, and cement, and from them, by the employment of convict labor, construct bridges which, under the provisions of sections 387 et seq. of the Code (1910), must be built or repaired by letting out the contract therefor to the lowest bidder, or in accordance with “ sealed proposals ” invited under the provisions as to specifications, etc., required by the section last referred to. Section 387 reads as follows: " Whenever it becomes necessary to build or repair any court-house, jail, bridge, causeway, or other public works in any county in this State, the officer having charge of the roads and revenues and public buildings of such county shall cause the same to be built or repaired by letting out the contract therefor to the lowest bidder, at public outcry, before the court-house door, after having advertised the letting of said contracts as hereinafter provided: Provided, that such county authorities shall have authority to reject any and all bids at such public letting; and if in their discretion the public interest and economy require it, such county authorities may build or repair any public buildings, bridges, causeways, or other public property in the county, by contract or sealed proposals, to be invited under the same provisions as to specifications and like informations as are provided in the following sections.”, The requirement of this statute, that the building of any bridge or other public work shall be by contract let out as provided in this and the following sections, is mandatory. It is insisted that the word “ shall,” where it appears in section 387, can be construed as " may ” and should be so construed in order to reconcile the language of that section with-section 747 of the Code (1910), which contains the following language: "The ordinaries of the several counties have authority to appoint the places for the erection of public bridges, county ferries, turnpikes, and causeways,
It follows from what we have said above, that the expense necessarily incurred in the keeping, maintenance, and equipment of the convicts is a valid charge upon the county, and that it was legal for the ordinary to levy a tax to raise the money to meet that obligation; but that a claim against the county for the purchase-price ■ of steel and other material for the bridges erected by the ordinary, which cost as much as $300 or more, is not a valid claim against the county. No question is made in the pleadings as they stand that it was competent for the ordinary to pay so much of the loan from the Atlanta National Bank as had been used in the discharge of valid claims against the county; and in the brief of counsel for the plaintiffs it is distinctly conceded “ that the question as to whether the Atlanta National Bank should be enjoined depends upon the legality of the tax levy. . . If the money was properly expended, the bank should be reimbursed; if the money was illegally expended, it was an illegal debt and the citizens can not pay the taxes for that purpose.” This concession is based upon counsel’s construction of the decision in the case of Butts County v. Jackson Banking Co., 129 Ga. 801 (60 S. E. 149, 15 L. R. A. (N. S.) 567, 121 Am. St. R. 244). We do not, however, construe the statement of counsel just quoted as going to the extent of conceding that a loan of money to be used in defraying current expenses (not merely to supply a casual deficiency of revenue) would be a legal charge against the county. Eor it is distinctly held in the Butts County case that “ County commissioners have no a,uthority to contract in behalf of a county for a loan of money (not to supply a casual deficiency of revenue) to be used in defraying current expenses, although the notes which evidence the loan be payable within the current year, and the general design be to discharge them from the anticipated revenue of that year.” The con-1 tentions of the plaintiffs in this regard can be made clear at the next hearing of this case; for the judgment must be reversed be
We do not think that the court erred in allowing the ordinary, by proper order, to amend his tax levy (Sullivan v. Yow, 125 Ga. 326 (54 S. E. 173) ), but in the present instance we do not think that the levy was sufficiently specific after the amendment. Especial attention is called to the second and third subdivisions under item 2, which blend and confuse the tax necessary to build and repair bridges which are to be let out to the lowest bidder with those that may be built by hiring hands, including the “use of convicts on the county chain-gang,” the expression, “ by the use of convicts on the county chain-gang,” occurring in both of these subdivisions. This is confusing, and gives no indication of the rate of tax required by the important item of work on the public roads by the use of convicts, and it does not show what proportion of the tax that will be raised by the levy of 50 cents on the one hundred dollars would be required for bridges which could only be built under contract let out as prescribed in §§ 387 et seq. of the Code of 1910. Before the levy can be enforceable, it must be so amended as to distinctly show for what purposes the tax is to be raised, and be free from the equivocal items that might be broad enough to embrace a tax levy to raise money for purposes which, under this decision, are declared to be invalid and illegal.
Where the ordinary has advertised a copy of the order containing the tax levy at the door of the court-house for the time prescribed by the statute (Code, § 515), failure to publish the same will not render the levy void. We think that the provision for advertising may be treated as directory; but in our opinion ordinaries and other county authorities having charge of the revenues of the county should conqply not only with the mandatory requirements of a 'statute, but, as far as practicable, with those provisions of the statute which can be construed to be only directory, in all cases where measures for raising taxes are concerned. This objection applies also to the failure of the tax levy to show the per cent, upon the amount of the State tax for the year. Sufficient data is given in the levy in the present case to clearly show the per cent, upon the amount of the State tax, but it would have been better to express that per cent, in words and figures.
Under the evidence the court was authorized to find that the ordi
Judgment reversed.
Concurrence Opinion
I concur in the reversal of the judgment, but regret that I can not concur in all that is said in the opinion of the majority of the court. The point on which I especially disagree with them is that they hold that the act of 1908 confers upon county authorities the power to levy taxes in addition to those previously authorized by law. Acts 1908, p. 1119; Penal Code (1910), §§ 1205 et seq. From this ruling I dissent. There is not a word, either in the caption of the act or its body, directly or indirectly referring to the power of county authorities to impose taxes. Prior to 1908 the State hired out or leased the labor of the felony convicts, under certain regulations. By the act passed in that year it was declared that the prison commission might work certain felony convicts on the State farm; and 'that others might “ be employed by the authority of the several counties and municipalities upon 'the public roads, bridges, ,and other public works of said counties or municipalities.” Provisions were made for assigning convicts to counties, upon application; for authority on the part of the commission to have work done on roads, etc., on application by counties not taking convicts; for authority on the part of a county to purchase and maintain a farm, in connection with working its convicts; for other matters of regulation; and for conferring upon municipalities the right to hire from the prison commission any number of convicts which might not be otherwise disposed of, at the price of $100 per capita per annum. If this alone authorized an ordinary to levy a tax, which he was not otherwise empowered to do, no limitation was placed upon his action in this regard. Either this act did not confer additional powers of taxation upon ordinaries, or else, by mere implication, it conferred upon them (where they administer county affairs) an unlimited power of taxing the people of their respective counties, to any extent which they might deem proper, in that connection. If the mere conferring of power to apply for, obtain, and work convicts upon the roads, etc., amends the tax laws as to counties, apparently it must also be construed as amending every municipal charter in the State, so as to confer a similar additional right of taxation beyond the present
The decision in Pennington v. Gammon, 67 Ga. 456, does not control the present case on the point now under consideration. There a county chain-gang was inaugurated, under certain provisions of law. The county commissioners levied a tax for the support and maintenance of convicts or prisoners, but it was found to be insufficient, and they were proceeding to make a temporary loan. to supply a casual deficiency. No contest was made as to the tax which had been levied, but injunction was sought as to the making of the temporary loan to meet the deficiency.
I am authorized to state that Chief Justice Fish concurs in this opinion.