120 Ga. 33 | Ga. | 1904
Layfield and others, as citizens and taxpayers, filed a petition against the Mayor and Council of Chipley, an incorporated town in Harris county, to enjoin the collection of a tax which had been levied by the defendant. At the hearing an injunction was granted as prayed, and the defendant excepted. It appears that the town of Chipley was incorporated by an act of the General Assembly, approved December 9,1882 (Acts 1882-3, p. 265), and that the charter was amended by an act approved October 6, 1885 (Acts 1884 — 5, p. 387). In neither the original charter nor the amendment was any authority given for the establishment or maintenance of a public school system. In 1903 the General Assembly passed an act the title of which was as follows; “ An act to amend the charter of the town of Chipley, in Harris county, so as to allow the mayor and council to levy a special tax for school purposes, not to exceed one half of one per cent, per annum, the amount to be raised not to exceed twenty-five hundred dollars, and for other purposes.” The body of the act purports to amend section 10 of the original charter, defining the powers of the mayor and council, so as to make that section read as follows: “ Be it further enacted by the authority aforesaid, that said mayor and council shall have full power and authority to levy and collect a tax upon all and every species of property, real and personal, within the limits of said town (except school and church property), upon banking and insurance capital employed in said town; provided, nevertheless, said tax so levied shall not exceed the State
The constitution of 1877, article 8, section 4,paragraph 1 (Civil Code, § 5909), provides that authority may be granted to counties upon the recommendation of two grand juries, and to municipal corporations upon the recommendation of the corporate authority, to establish and maintain public schools in their respective limits by local taxation; “butno- such laws shall take effect until the same shall have been submitted to a vote of the qualified voters in each county or municipal corporation, and approved by a two-thirds vote of persons qualified to vote at such election.” It would seem that this language is so clear that there should be no trouble whatever in ascertaining its meaning; but, as was said by Mr. Justice Crawford in the case of Mayor of Rome v. McWilliams, 67 Ga, 119, “it is very doubtful whether human legislation can be so flamed as to defy the ingenuity of man in reaching, by construction and implication, the right to collect and disburse the public revenues illegally.” The title of this act provides for an amendment to the charter of the town of Chipley so as to allow the levy of a tax for school purposes. The body of the act authorizes the levy of this tax every year. Taking the caption of the act and its body, and considering the allegations of the petition and the averments of the answer, we think the court below was justified in finding as a matter of fact that this was an attempt on the part of the mayor and council to levy a tax for the support of a school without first submitting to the
Nothing embodied in the Political Code, §§719 et seq., will authorize the levy of such a tax as is proposed in the present case; nor do the decisions of this court in the cases of Mayor of Rome v. McWilliams, 67 Ga. 106, Fleishel v. Hightower, 62 Ga. 324, and Mayor of Cartersville v. Baker, 73 Ga. 686, constitute any authority therefor. In their petition, which was under oath, the plaintiffs alleged that the scheme of the defendants was to establish a public school. The answer averred that the school sought to be created 'was a private school. This question of fact was determined by the court in favor of the plaintiffs; and that being so, there is nothing in any of the cases cited that would authorize a reversal of the judgment enjoining the collection of the tax. In the Cartersville case it appeared that the charter of the City of Cartersville was amended in 1872, so as to authorize the levy of taxes to aid in building up schools as the authorities might think proper. . The constitution of 1877 expressly excepted from its provisions all local school systems in existence at the time of its adoption. By that constitution the right of the City of Cartersville to aid schools was recognized and guaranteed, such right having been granted previously to its adoption. Furthermore, the tax in that case had already been levied and collected. The money was in the treasury, and the purpose of the appropriation was to erect •a school building. The case of Rome v. McWilliams, supra, was decided by a divided bench, and hence is not binding as authority on this court; but even if that were not the case, the purpose of the tax there involved was to carry out the objects for which the city was incorporated, to provide offices for the mayor and coun-cilmen, to build fire-engine houses, and to construct other improve
Judgment affirmed.
