O'Byrne v. Mayor of Savannah

41 Ga. 331 | Ga. | 1870

By the Court—

BROWN, C. J.,

delivering the opinion.

■ 1. The city of Savannah as a municipal corporation, has only such power of taxation as is granted to it by the sovereign authority. The right of taxation inheres in the sovereign: 2 Blac. Com., 37.

During the existence of the Confederate government,, while the city, as is shown by this record, supported that government against the government of the United States, and the State Government formed part of the Confederacy engaged in conducting war against the government of the United States, the city could claim no grant from the State, as one of the United States, to assess a tax for any purpose. Whatever powers she had while engaged in the war against the United States, under, and in aid of the government of the Confederate States, she derived from the State as a member of that government. Her legal government had been displaced, and she was controlled by a government whose authority depended uppn the success of the armies of the government to which it adhered, and under which it exercised its powers.

2. A de facto government, able to maintain its supremacy by its arms, may exercise the power of taxation, and its subjects are bound to obey its laws and pay the tax assessed, as they are unable to resist its authority. It does this by virtue of its exercise of sovereignty while it is supreme. But after it has assessed a tax, if it is overthrown before the tax is collected, and the power of the rightful sovereign is re-established, the tax will not be enforced; as the rightful government will not execute the laws of the government de facto, in imposing burdens, by taxation, for its own support upon the subjects of the government de jure.

3. In such case we hold that those who were not compelled to pay the tax, during the existence of the government de facto, are no longer liable for it, after the gov-eminent by *which it was imposed has ceased to exist. And those who paid the tax have no remedy, as they can look alone to the government which received it for redress, and that has passed away and can afford none.

4. As the plaintiffs in error are not now liable to the city of Savannah for any tax assessed by her, during the period while the de facto government of the State and city adhered to the Confederate government, and aided in the war against the government of the United States, a promissory note, given in consideration, of such supposed liability, is void for want of consideration.

5. The note sued on in this case is founded upon two distinct considerations, which, as the record shows, are clearly severable. One is the tax assessed by the de facto government of the city during the war. The other, an amount due the city for ground rent, by contract made prior to the war, and for the tax imposed by the rightful government since the war. The precise amount of war tax, and the exact amount of ground rent and legal tax are clearly ascertainable by reference to the record. A contract may be either entire or severable. In the former, the whole contract stands or falls together. In the latter, the failure of a distinct part, does not void the remainder. The character of the contract in such case is determined by the intention of the parties. See Revised Code, section 2683.

We hold that the Court should have instructed the jury in this case, to deduct the amount of the tax assessed during the war, and to find for the city the amount due for ground rent and for tax assessed by the city authorities since the restoration of legal government over the city.

Judgment reversed.