DeKalb County v. Brown Builders Co., 26554
| Decision Date | 09 July 1971 |
| Docket Number | No. 26554,26554 |
| Parties | DeKALB COUNTY v. BROWN BUILDERS COMPANY, Inc., et al. |
| Court | Georgia Supreme Court |
George P. Dillard, Herbert O. Edwards, Robert E. Mozley, Decatur, for appellant.
McCurdy, Candler & Harris, J. Robin Harris, John Walter Drake, Murphey Candler, Jr., Decatur, Arthur K. Bolton, Atty. Gen., Atlanta, for appellees.
Syllabus Opinion by the Court
This appeal is from a judgment of the trial court holding the following DeKalb County ordinance unconstitutional and permanently enjoining its enforcement:
Appellant also enumerates as error: 1.
The overruling of its motion to dismiss the appellee's complaint for failure to state a cause of action and for failure to join the DeKalb County Board of Education as an indispensable party, 2. the sustaining of appellee's motion to strike appellant's third party complaint and dismissing the DeKalb County Board of Education as a third-party defendant, and 3. the trial court's order directing refunds of all sums collected under said ordinance from a certain date. Held:
1. Appellant contends that the ordinance imposes a building permit fee and that the county has the right to impose such a fee under the Ga.L.1937, pp. 583-587, as amended in 1939, pp. 248-250; and the Ga.L.1961, p. 560 (Code Ch. 23-28). The appellant also contends that it had the authority to impose the fee as a business license tax under a local constitutional amendment adopted in 1958 (Ga.L.1958, pp. 582-586) and an Act of the General Assembly adopted pursuant thereto. Ga.L.1959, pp. 2658-2661.
The appellee contends that the ordinance imposes a charge of $120 'in addition to all charges for building permits now required' and that the revenue produced therefrom is to be allocated to the Board of Education. Therefore, it argues that the charge is not a building permit fee or a license but is a tax.
Richmond County Business Association, v. Richmond County, 224 Ga. 854, 856, 165 S.E.2d 293, 295, Pharr Road Investment Co. v. City of Atlanta, 224 Ga. 752, 164 S.E.2d 803.
In our opinion the DeKalb County ordinance under attack here is clearly a tax or a charge imposed for the purpose of collecting revenue. The funds are in addition to all charges that are currently imposed for building permits and are allocated directly to the Board of Education to be used in providing additional school facilities. Obviously the funds are not for the purpose of regulation and control of the building industry.
2. Commissioners of Chatham County v. Savannah Elec. etc. Co., 215 Ga. 636, 637, 112 S.E.2d 655, 657; Richmond County Business Association v. Richmond County, 224 Ga. 854, 856(1), 165 S.E.2d 293.
We fail to find any authority which authorizes DeKalb County to impose a tax for school purposes as set out in the ordinance here. On the contrary Article VII, Section IV, Paragraph I of the Constitution of Georgia provides in part: 'The General Assembly may authorize any county to exercise the power of taxation for any public purpose as authorized by general law or by this Constitution, and unless otherwise provided by this Constitution or by law, no levy need state the particular purposes for which the same was made nor shall any taxes collected be allocated for any particular purpose, unless expressly so provided by the General Assembly or this Constitution.' Code Ann. § 2-5701.
Article VII, Section IV, Paragraph II of the Constitution of Georgia provides: 'In addition to such other powers and authority as may be conferred upon any county by this Constitution or by the General Assembly, counties are hereby authorized to exercise the power of taxation for the following purposes which are hereby declared to be public purposes and expend funds raised by the exercise of said powers for said purposes and such other public purposes as may be authorized by the General Assembly: * * *
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...order of April 19, 1973, directing the refund of taxes paid prior to January 15, 1973, is erroneous. See DeKalb County v. Brown Builders, 227 Ga. 777(5), 183 S.E.2d 367. Judgment affirmed in part; reversed in All the Justices concur, except GUNTER, J., who dissents. ...
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