Waring v. The Mayor

• Decision Date: 31 January 1878
• Parties: Waring. v. The Mayor and Aldermen of the City of Savannah
• Court: Georgia Supreme Court

60 Ga. 93

Waring. v. The Mayor and Aldermen of the City of Savannah

Supreme Court of the State of Georgia

(January Term, 1878.)

.

[This case was argued at the last term and the decision reserved.]

Constitutional law. Municipal corporations. Tax. Before Judge Tompkins. Chatham Superior Court. May Term, 1877.

Reported in the opinion.

L. H. deMontmollin; N. J. Hammond, for plaintiff in error.

Jackson, Lawton & Basinger, for defendants. Jackson, Judge.

This was an affidavit of illegality to a tax execution, issued by the authorities of the city of Savannah, made before the mayor and council of the city, and overruled by them in council assembled. The case was carried by certiorari to the superior court of Chatham county, which court affirmed the judgment of the city tribunal, and Waring excepted and brings the case before us.

The following are the grounds of illegality set out in the affidavit:

Firstly. Because the mayor and aldermen of the city of Savannah, in passing the tax ordinance for said city, for theyear eighteen hundred and seventy-five, and to enforce *which said ft. fa. has been issued and levied as aforesaid, violated the provisions of the fifth paragraph of the fourth section of the third article of the constitution of Georgia, inasmuch as said so-called ordinance refers to more than one subject matter, to-wit: the raising of revenue for said city and the compensation to be paid certain officials of said city therein named. Wherefore it is void, and no taxes can be collected from petitioner thereunder.

Secondly. Because the said mayor and aldermen of the city of Savannah, in passing said so-called ordinance, entitled "An ordinance to assess and levy taxes and raise revenue for the city of Savannah; to fix the salaries and compensation of certain officers and employees of said city, etc., for the year 1875, " did intentionally omit to impose any tax whatever upon several million dollars' worth of property located within said city, declared to be taxable under the laws of Georgia, consisting, in part, of stocks in railroad and other corporations, and liable to contribute its proper proportion of taxes towards the support of the government of said city, and, to that extent, have illegally increased the burden of taxation upon petitioner's property (real estate), while giving no proportionate advantage or benefit over those whose property is thus illegally exempted by reason of the failure to mention and tax the same in and by said so-called ordinance, and have thereby relieved petitioner from any legal obligation to pay taxes under the provisions of said so-called ordinance upon said real estate in said city.

Thirdly. Because the said mayor and aldermen aforesaid have, in and by said so-called ordinance, adopted a different rule for the ascertainment of the taxes to be paid by the real property of petitioner from that adopted for the ascertainment of taxes upon bonds, judgments and certain other personal property therein specified, in this, to-wit: while real estate is taxed at the rate of two and one-quarter per centum per annum, ad valorem, the taxon bonds, notes, etc., is regulated by the amount of interest received thereon, *upon which interest so received a tax of one per centum is assessed. Wherefore petitioner claims the said tax of two and one-quarter per centum on realestate, the said fi. fa., with proceedings thereunder, to be illegal.

Fourthly. Because, while the law of Georgia only authorized the exemption of fifty dollars' worth of household and kitchen furniture, the said mayor and aldermen of the city of Savannah have attempted throughout the year eighteen hundred and seventy-five, by said so-called ordinance, to exempt three hundred dollars' worth of property from taxation, which exemption this petitioner here charges to be illegal, and alleges that said so-called ordinance is void by reason thereof.

Fifthly. Because the said mayor and aldermen of the city of Savannah, in and by said so-called ordinance, have deliberately attempted to make petitioner bear more than his proper proportion of the public burden, (which is common, and should be borne by all classes and property alike,) by making illegal exemptions from taxation, and unreasonable and illegal discriminations in favor of other classes of property in said so-called ordinance mentioned, and against the real estate of petitioner, all of which will appear by reference to said so-called ordinance. Wherefore petitioner says said so-called ordinance and fi. fa. are illegal.

Sixthly. Because the said mayor and aldermen of the city of Savannah, in and by said so-called ordinance, passed in council on December 30, 1874, entitled "An ordinance to raise revenue for the city of Savannah, etc., for the year 1875, " and to enforce which said fi. fa. was issued and levied, have only imposed a tax of one per centum per annum upon the gross earnings of banks and bankers in said city, and upon interest on notes, judgments, etc., and upon commissions or income derived from certain kinds of business specified in the fifth section of said so-called ordinance, for the year 1875, all of which are taxable property under the laws of Georgia, while taxing, under the same so-called ordinance, and for the same period of time, petitioner's real estate at the rate of two and one-quarter per centum per *annum ad valorem, which discrimination petitioner avers is in violation of the twenty-seventh paragraph of the first article of the constitution of Georgia. Wherefore said so-called ordinance, and the fi. fa. to enforce the same, are illegal.

It will be seen that these grounds, when analyzed and reduced to the fewest number of propositions, amount to four: First, that the ordinance is void in that it contains two subjects matter; secondly, that it exempted certain property from taxation; thirdly, that it taxed real estate 2¹/₄ per cent., and interest on bonds, notes, judgments, etc., and the gross earnings of banks it only taxed one per cent; and, fourthly, that it taxed incomes only one per cent., while taxing realty 2¹/₄ per cent.

1. In respect to the first ground, we think that the provision in the constitution in respect to the title of acts, and the subjects matter thereof, have no application to the ordinance of cities. The words of the constitution of 1868 confine these requirements to the legislature, and the evident meaning re-stricts them to that body, and laws passed by that...