Albany Bottling Co. v. Watson

• Decision Date: 04 March 1898
• Citation: 30 S.E. 270,103 Ga. 503
• Parties: ALBANY BOTTLING CO. v. WATSON et al.
• Court: Georgia Supreme Court

30 S.E. 270

103 Ga. 503

ALBANY BOTTLING CO. v. WATSON et al.

Supreme Court of Georgia

March 4, 1898

Syllabus by the Court.

1. A county, being a corporation created by and existing under the laws of this state, can exercise only such powers as are conferred on it by law; and when it undertakes, through its constituted authorities, to exercise the power of taxation in any given manner, a clear and manifest legal right to do so must appear.

2. Construing, in connection with preceding sections of the Political Code, the phrase "the per cent. levied." as used in section 405, means a given per cent. upon the state tax levied for the year in question; and, under the law embraced in that section, the county assessment must in each instance specify the particular county purpose for which this designated per cent. upon the state tax is levied.

3. When, therefore, the county authorities of a given county imposed an arbitrary tax of $50 for the year 1897 on all dealers in spirituous or malt liquors, etc., doing business in that county, relying for the power so to do upon the provisions of section 405, the imposition of such tax was unlawful.

4. The court erred in refusing to grant an injunction to restrain the collection by levy and sale of a tax imposed in the manner above indicated.

Error from superior court, Dougherty county; W. N. Spencer, Judge.

Proceedings by W. O. Watson and others, commissioners of roads and revenues of Dougherty county, against the Albany Bottling Company, to collect a tax. From a judgment for plaintiffs defendant brings error. Reversed.

Jones & Bacon, for plaintiff in error.

D. H Pope & Son, for defendants in error.

LITTLE J.

The questions which arise in this case grow out of a levy of a tax execution issued by the commissioners of roads and revenues of Dougherty county to collect a specific tax from the plaintiff in error for the year 1897. It appears that the plaintiff in error is a dealer in spirituous and malt liquors, doing business in the city of Albany, Dougherty county; that it returned all its property to the county for ad valorem taxation for the year 1897, paid all specific and license taxes required to be paid to the state and United States, and paid the city of Albany $200, as the amount required to be paid to that city for license to conduct its business therein for and during the year 1897. It appears that on August 19, 1897, the board of commissioners passed an order for the levy of specific taxes on divers occupations carried on in Dougherty county, in which order the following language is employed: "On all dealers in spirituous or malt liquors, intoxicating bitters or brandy fruit, domestic wines, or any or all thereof, for each place of business where manufactured or sold, $50.00;" it being provided in said order that the same was passed, in accordance with the laws, for the roads and bridges fund, as a supplement to the ad valorem tax levied for said purpose. In pursuance of this order an execution was issued against the plaintiff in error, commanding the sheriffs and constables of this state "that of the goods and chattels, lands and tenements, of the Albany Bottling Company you levy, and by distress and sale thereof, sufficient to make the sum of $50, special county liquor license tax now due and owing to said county for taxes for the year 1897," etc. Upon the levy of this execution, the plaintiff in error presented to the judge of the superior court a petition praying that an injunction might be granted to restrain the collection of the tax. The prayer of the petition was denied, and, to the order denying same, the plaintiff in error excepts, and brings the case here. The question, therefore, which arises, is whether the commissioners of Dougherty county can lawfully compel the plaintiff in error to pay the tax levied as a specific business tax.

1. Paragraph 1, § 1, art. 11, of the constitution of this state declares that "each county shall be a body corporate, with such powers and limitations as may be prescribed by law," etc. The legal status of counties is therefore fixed, and they can exercise such powers as the general assembly may grant; and they possess no powers not so conferred upon them, either expressly or by fair implication from the statutes applicable to them. 15 Am. & Eng. Enc. Law, p. 1039, and authorities cited. As political divisions of the state, charged with the administration of government within the limits prescribed by the general assembly, neither such corporations not their officers can do any act, or make any contract, or incur any liability not authorized by some legislative act applicable thereto, and all acts done beyond the scope of the power granted are void. The same rules and limitations which by law are imposed on cities, towns, and other municipal corporations are equally applicable to counties. They can exercise no powers except those which are conferred upon them by legislative action, or such as are necessary to the exercise of their corporate powers, the performance of their corporate duties, and the performance of the purposes of their association. 1 Dill. Mun. Corp. (4th Ed.) p. 146. This is a principle well established, and must be closely adhered to, when such a corporation undertakes to exercise the power of taxation within its limits. The power to tax is incident to the state, because of its sovereign character. Neither counties not municipal corporations of any character possess this power, to any extent, unless conferred by the constitution or the laws of the state; and therefore such power can only be exercised when delegated in plain and unmistakable terms, or when...