Bd. Of Com'rs Of Rd.S And Revenues Of Habersham County v. Porter Mfg. Co

• Decision Date: 22 March 1898
• Citation: 30 S.E. 547,103 Ga. 613
• Parties: BOARD OF COM'RS OF ROADS AND REVENUES OF HABERSHAM COUNTY et al. v. PORTER MFG. CO.
• Court: Georgia Supreme Court

30 S.E. 547

103 Ga. 613

BOARD OF COM'RS OF ROADS AND REVENUES OF HABERSHAM COUNTY et al.

v.PORTER MFG. CO.

Supreme Court of Georgia.

March 22, 1898.

Municipal Corporations—Taxing Powers— Counties—Repairs of Public Buildings.

1. The limitation placed by the constitution (article 7, § 7, par. 1) upon the power of municipal corporations and counties of this state to incur debts does not operate in any way as a limitation upon the taxing power of such corporations and counties.

2. The authorities who have in charge the county affairs of the several counties of thisstate are authorized, without the recommendation of the grand jury, to levy an extra tax for the purpose of erecting or keeping in repair the necessary public buildings of the county.

3. The decision in the case of Lewis v. Lofley, 19 S. E. 57, 92 Ga. 804, upon a review, is adhered to and reaffirmed.

4. The levy by the county authorities of a tax "to pay other lawful charges against the county" is not so indefinite that its collection should be enjoined.

(Syllabus by the Court)

Error from superior court, Habersham county; J. J. Kimsey, Judge.

Petition by the Porter Manufacturing Company against the board of commissioners of roads and revenues for Habersham county and others for an injunction. From a judgment for petitioner, defendants bring error. Reversed.

H. H. Perry, Geo. P. Erwin, and J. B. Jones, for plaintiffs in error.

W. P. McClatchy, Chas. L. Bass, and J. J. Bowden, for defendant in error.

COBB, J. On August 23, 1897, the commissioners of roads and revenues of Habersham county passed an order levying a tax of 49 cents on each $100 worth of property for the several purposes enumerated in the order, and, in addition thereto, a special tax of 35 cents on each $100 for the purpose of building a new court house. The levy of 49 cents per $100 was made up of the following items: (1) To pay the indebtedness due or to become due, 10 cents; (2) to build or repair public buildings, bridges, etc., 7 cents; (3) to pay sheriffs, jailers, etc., 8 cents; (4) to pay coroners, 1 cent; (5) to pay bailiffs, and for stationery, fuel, etc., 2 cents; (0) to pay jurors, 10 cents; (7) to support the poor, 5 cents; (8) to pay other lawful charges against the county, 6 cents. Upon the petition of the Porter Manufacturing Company, a corporation residing in Habersham county, the judge of the superior court granted an injunction as to the special tax of 35 cents to build a new court house, and the 6 cents per $100 to pay other lawful charges against the county, on the ground that such taxes are unconstitutional, and therefore illegal and void. To this ruling the county commissioners excepted.

1, 2. The extra tax to build a court house was enjoined on the ground that the same was unconstitutional, and therefore void. It was contended in the court below, as well as in this court, that the levy of the extra tax for this purpose violated that provision of the constitution contained in article 7, § 7, par. 1, which declares that "the debt hereafter incurred by any county, municipal corporation, or political division of this state, except as in this constitution provided for, shall not exceed seven per centum of the assessed value of all the taxable property therein, and no such county, municipality, or division shall incur any new debt, except for a temporary loan or loans to supply casual deficiencies of revenue, not to exceed one fifth of one per centum of the assessed value of taxable property therein, without the assent of two-thirds of the qualified voters thereof, at an election for that purpose, to be held as may be prescribed by law; but any city, the debt of which does not exceed seven per centum of the assessed value of the taxable property at the time of the adoption of this constitution, may be authorized by law to increase, at any time, the amount of said debt, three per centum upon such assessed valuation." Civ. Code, § 5893. The position taken by counsel was that the levying of the tax was the creation of a debt, within the meaning of the section above quoted, and that, the purpose for which it was levied not being "to supply casual deficiencies of revenue, " the levy was illegal and void, because not submitted to a vote of the people of the county. We cannot concur in this view. The levying of a tax is not the incurring of a debt. The very purpose of the clause of the constitution above quoted was to compel the counties and other political divisions of this state to pay by annual taxation, as far as possible, all expenses which had to be borne. As, however, there might be instances in which the incurring of a debt was necessary and proper, the constitution does not absolutely prohibit it, but places a limit upon the power of the public authorities of the different counties to incur debts, and, even where the debt sought to be incurred is within the limit, requires the consent of two-thirds of the qualified voters, so that no debt may be incurred unless such a course is undoubtedly for the public good. See Walsh v. City Council, 67 Ga. 293. Instead of the clause above quoted prohibiting the collection of a tax, the purpose of the clause was to compel the levying of a tax. This paragraph of the constitution cannot, under any view, be considered as a limitation upon the power of the county to levy and collect taxes. The constitution does, however, limit the taxing power of the county as to the objects for which the tax may be levied. Article 7, § 6, par. 2, provides that "the general assembly shall not have power to delegate to any county the right to levy a tax for any purpose, except for educational purposes in instructing children in the elementary branches of an English education only; to build and...