Wright v. Atlantic Coast Line Railroad

40 Ga. App. 785 | Ga. Ct. App. | 1930

Stephens, J.

• l.A judgment in a suit in which there was presented for determination the right of the county authorities to appropriate to the maintenance of a county demonstration agent a fund derived from a tax levy made for the purpose of raising funds for the maintenance of a county demonstration agent, where the invalidity of the appropriation was based upon the ground that no lawful levy could be made to raise funds for the specific purpose of being applied to the maintenance of the demonstration agent and was not based upon the ground that the levy was illegal by reason of being in excess of that permitted by law, does not amount to an adjudication of a question made in a subsequent suit respecting the invalidity, by reason of excessiveness, of a tax levy made for school purposes and for the maintenance of a county demonstration agent, although the alleged excess in the amount of the tax levy thus made was in the exact amount specified in the levy for the support and maintenance of the county demonstration agent. The two suits are not upon the same claim or demand, and the same evidence will not sustain both suits. 15 R. O. L. 962 et seq.

2. A tax levy made for the purpose of raising revenue for the maintenance of a county demonstration agent, as authorized by law (Ga. L. 1922, p. 81; Ga. L. 1923, p. 88), is made for educational purposes; and where a tax levy is made by the county authorities, outside of an independent local system, for the purpose of raising revenue for the maintenance of the public schools of the county in the sum of 5 mills, and also for the purpose of paying the salary of the county demonstration agent, in the sum of 34/100 mills, the entire levy is made for educational purposes, and is to the extent of 34/100 mills in excess of 5 mills for educational purposes, and the levy, to the extent wherein it exceeds 5 mills, is illegal. Civil Code (1910), § 6579; Brown v. Martin, 162 Ga. 172 (132 S. E. 896); McIntosh County v. S. A. L. Ry. Co., 38 Ga. App. 611 (144 S. E. 687).

•3. This being a case of an affidavit of illegality filed by a taxpayer to a levy made under a tax execution, the court properly sustained the defendant’s demurrer to an amendment offered by the plaintiff in aid of the tax execution, wherein the plaintiff sought to plead a judgment upon a demurrer to a petition in a former suit as operating as res judicata of the matters set up in the defendant’s affidavit of illegality. The court also properly sustained the affidavit of illegality to the tax execution, wherein the defendant contested the payment of the tax levied in excess of 5 mills.

Decided January 23, 1930. A. H. Gray, for plaintiff. Bennel & Peacoch, for defendant.

Judgment affirmed.

Jenkins, P. J., and Bell, J., concur.