Gunby v. Yates, 19992

• Decision Date: 07 March 1958
• Docket Number: No. 19992,19992
• Parties: Eugene GUNBY et al., Commissioners, v. Harold YATES, Ordinary.
• Court: Georgia Supreme Court

Page 548

102 S.E.2d 548

214 Ga. 17

Eugene GUNBY et al., Commissioners, v. Harold YATES, Ordinary.

No. 19992.

Supreme Court of Georgia.

March 7, 1958.

Syllabus by the Court.

Section 8 of the act of 1953 (Ga.L.1953, Nov.-Dec.Sess., p. 362) as amended by the act of 1955 (Ga.L.1955, p. 645), which provides that county ordinaries on the sale of each marriage license shall charge and collect from the purchaser of such license, in addition to the fees now prescribed by law for the services, the sum of $1, and shall remit such sum to the board administering the Ordinaries' Retirement Fund for its use in paying retirement benefits and the cost of administration, violates the provisions of paragraph 1, section 2, article 7 of the Constitution of Georgia (Code, Ann.Supp., § 2-5501), in that such assessment on each marriage license sold is a tax, and the General Assembly is not authorized by the Constitution of this State to levy a tax for the purpose of paying benefits to retired ordinaries.

Adams & McDonald, C. Ernest McDonald, Dalton, for plaintiff in error.

Joe B. Tucker, Ringgold, R. Carter Pittman, Pittman, Kinney & Pope, Dalton, for defendant in error.

ALMAND, Justice.

The judgment under review is one sustaining general demurrers to a petition for the writ of mandamus absolute.

By an act of 1953, Code § 24-1701a et seq., the General Assembly of Georgia provided a system of retirement benefits for county ordinaries, wherein a board, to be known as The Commissioners of the Ordinaries Retirement Fund of Georgia, was appointed, consisting of the Governor of Georgia, the Attorney-General of Georgia, and three ordinaries, such board being vested with the control of all funds received and disbursed. To be eligible to participate upon his retirement at the age of 60, an ordinary was required to pay into the retirement fund monthly 5 percent of the net amount he had received for his official services as ordinary. Ga.L.1953 (Nov.-Dec.Sess.), p. 362. The act created the position of secretary-treasurer for the board and authorized and directed the State Auditor to make an annual audit of the acts of the board and report the same to the legislature. Section 8 of the act as amended provides: 'The sum of $1 for each marriage license sold in each county of this State shall be paid to the board. This amount shall be deducted from the cost of marriage licenses by each ordinary and retained by him. * * * The sums remitted to the board under this paragraph shall be used for the purpose of paying retirement benefits herein provided for and the cost of administration incurred by the board: Provided, however, the sum of $1 as provided herein shall be in addition to the fees now prescribed for such services.' (Italics ours.) Ga.L.1955, p. 645 (Code, Ann.Supp., § 24-1708a). Eugene Gunby and others, as Commissioners of the Ordinaries Retirement Fund of Georgia, filed their petition in the Superior Court of Catoosa County against Harold Yates as Ordinary of Catoosa County, in which they alleged that Yates had sold 2,760 marriage licenses between January, 1957, and September 30, 1957, and had failed to remit to the board after demand the sum of one dollar for each of such marriage licenses sold, and prayed that a mandamus absolute be granted, requiring Yates to pay the sum of $2,760 to the board. The defendant filed his general demurrers to the petition, in which he asserted that the act of 1953, supra, as amended by the act of 1955, supra, violated several enumerated provisions of the Constitution of the State of Georgia.

The constitutional attack of the defendant is directed entirely to section 8 of the amended act, one of the grounds being that the collection and payment of one dollar from the sale of each marriage license by the ordinaries of the State into the Ordinaries' Retirment System violates paragraph 1, section 2, article 7 of the Constitution of Georgia (Code, Ann.Supp., § 2-5501), in that it is an attempt to impose a tax upon only those persons seeking marriage licenses for the benefit of a particular and limited class of citizens, and that such tax is not for a purpose authorized by the Constitution of Georgia. The above-cited paragraph of the Constitution provides: 'The powers of taxation over the whole State shall be exercised by the General Assembly for the following purposes only'; and among the purposes specified, no provision is made for levying taxes for the purpose of paying retirement benefits to county ordinaries.

Whether there is any merit to this constitutional attack depends upon the answer to this question: Does the provision of section 8 of the amended act, authorizing the collection of one dollar for each marriage license sold, amount to a fee or compensation for services rendered, or rather is it a tax levied upon the sale of the marriage license? A tax is an enforced contribution exacted pursuant to legislative authority for the purpose of raising revenue to be used for public or governmental purposes, and not as payment for a special privilege or a service rendered. United States v. Butler, 279 U.S. 1, 61, 56 S.C. 312, 80 L.Ed. 477; Central Savings Bank in City of New York v....