Wright v. Southern Railway Co.

28 Ga. App. 545 | Ga. Ct. App. | 1922

Broyles, C. J.

(After stating the foregoing facts.) While it is true that since the adoption of the amendment to section 2 of article 6 of the constitution of this State, ratified November 7, 1916, and proclaimed by the Governor on December 15, 1916, as a part of the constitution, the Court of Appeals has no jurisdiction of any case that involves a construction of the constitution of the State of Georgia, the Supreme Court has held that “the words, ‘ construction of the constitution/ etc., as here employed, contemplate construction where the meaning of some provision of the constitution is directly in question, and is doubtful by force of its own terms or under the decisions of the Supreme Court of the United States or of the Supreme Court of Georgia; and the pro-. vision of the constitution in which they are employed is not to be construed as denying to the Court of Appeals jurisdiction of cases which involve mere application of unquestioned and unambiguous provisions of the constitution to a given state of facts.” Gulf Paving Co. v. City of Atlanta, 149 Ga. 114, 117 (99 S. E. 374, 375.) In the instant case the constitutional question upon which the case turns involves merely an application of an unquestioned and unambiguous provision of the constitution to an agreed state of facts; and, therefore, this court has jurisdiction to entertain and decide the ease.

We think the trial court properly sustained the affidavit of illegality. The tax execution was illegal, it being to enforce the collection of a tax from the defendant only, and being different in amount and purpose from the tax collected from all other taxpayers of Bleckley county. In other words, it is clearly a special tax against the' defendant alone, and is not uniform with that collected from the other taxpayers of the county. Such a tax violates article 7, section 2, paragraph 1, of the constitution of Georgia (Civil. Code of 1910, § 6553), which provides that “All taxation shall be uniform upon the same class of subjects and ad valorem on all property subjects to be taxed within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws.”

The $3 levy for the support and maintenance of the State convicts, as contained in the original levy of 1918, and which the defendant refused to pajr, was clearly illegal. The county had prior to this levy adopted the alternative road law, which authorized a levy of $4 on each $1,000 of taxable property for all road purposes. This maximum rate of $4 for road purposes was levied in the original levy of 1918, and the county authorities had no power to provide in the same levy for an additional tax of $3 per $1,000 for the support and maintenance of the State convicts who were used in working the roads of the county. The Supreme Court, in the case of Central of Georgia Ry. Co. v. Meriwether County, 148 Ga. 423 (96 S. E. 884), pointedly held such an additional levy as made in the instant case illegal, it being there said: “ It follows as a matter of course, that, ‘ after having levied the maximum rate of $4 per thousand for the maintenance of such system ’ provided by the alternative road law, the county authorities have no power to ‘levy an additional tax, under the provisions of the act . . of September 19th, 1908 (Acts 1908, p. 1119), for the support of the chain-gang to be used upon-the public roads, bridges, or other public works of the county/ ” It follows that the defendant railway eompanjq at the time of making settlement and payment of its taxes, paid all taxes it legally owed the county under the levy for the year 1918.

After having collected from all other taxpayers all of the taxes for the certain purposes named in the tax levy for 1918, and after having collected from the defendant railway company all taxes that could legally be collected from it under that levy, the commissioner, in the year 1919, attempted to amend his original levy. There was no need of any amendment to make the original levy specific, or to make it clear; and, the commissioner’s so-called amendment was, in fact and effect, nothing mpre than a new levy against a single taxpayer,— the defendant in this case. The so-called amendment was an attempt to strike from the original levy an illegal levy for an illegal purpose and to add the illegal levy for an illegal purpose to an item of the levy for a legal purpose. It not only added to and increased the levy for a proper purpose, but it changed the purpose for which the illegal levy was made in an effort-to make the raising of funds for an illegal purpose legal. And, in the language of the case of Wright, v. Southern Railway Co., 137 Ga. 801 (74 S. E. 529), “this proceeding was not a legitimate amendment of the original levy, but amounted to an attempted new levy against a single taxpayer; and a fi. fa. based thereon, for the amount of the illegal taxes which the defendant in error had refused to pay, was unenforceable.”

Counsel for the plaintiff in error rely on the case of Yow v. Sullivan, 129 Ga. 187 (58 S. E. 662), as authority for their contention that the last levy was merely an amendment of the original levy, and is therefore permissible. We cannot agree with this contention. That case is easily distinguished from the instant one, in that, among other things, the amendment in that case merely specified the percentages levied for each purpose in the original levy, which the county authorities had failed to specify in the first instance, whereas in the present case it was clear what amount each taxpayer was required, in the original levy, to pay for each particular designated purpose, but there was an illegal assessment for road purposes, which the commissioner attempted to tack on to a levy for a legal purpose and to enforce against the defendant alone.

The court did not err in sustaining the affidavit of illegality.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.