Linton v. The Mayor

• Decision Date: 31 January 1875
• Citation: 53 Ga. 589
• Parties: John S. Linton, plaintiff in error. v. The Mayor and Councii, of the City of Athens, defendant in error.
• Court: Georgia Supreme Court

53 Ga. 589

John S. Linton, plaintiff in error. v. The Mayor and Councii, of the City of Athens, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1875.)

Taxes. Constitutional law. Municipal corporations. Before Judge Rice. Clarke Superior Court. August Term, 1874.

This case is reported in the decision.

SpEER & Thomas, for plaintiff in error.

Cobb, Erwin & Cobb; S. P. Thurmond; T. W. Rucker, for defendant.

Warner, Chief Justice.

This was a bill filed by the complainant against the defend590##ant, praying for an injunction to restrain the collection of #*a tax execution issued by the defendant against the complainant's property, on the ground that the tax is illegal. When the motion for an injunction came on to be heard, the defendant demurred to the complainant's bill for want of equity. The court sustained the demurrer, and the complainant excepted.

1. The complainant alleges that he is a farmer by occupation, and in order to carry on said occupation he, many years ago, purchased a valuable tract of land in the county of Clarke, situated about one mile and a half from the centre of the city of Athens, and is now engaged in the occupation of said land solely for agricultural purposes; that in 1815 the corporate limits of the town of Athens were extended one mile in every direction from the college chapel; that in 1842 the limits of said town of Athens were extended to prevent the sale of liquors and establishment of lewd houses in close proximity to Franklin College, situated in said town, and not for the purpose of increasing the municipal revenue; that in 1872 the general assembly passed an act amending the charter of the town of Athens, making it a city, the authority and jurisdiction of which was extended a distance of two miles in every direction from the college chapel. It will be noticed that the complainant does not allege in his bill what distance from the college chapel the act of 1842 extended the corporate limits of the town, but by reference to that act it appears that the corporate limits of the town were extended by it two miles from the college chapel, and the act of 1872 does not extend the limits of the city of Athens any further than the corporate limits of the town of Athens were extended by the act of 1842; nor does the complainant allege at what time he purchased the land, but it was conceded on the argument that he purchased it subsequent to the year 1842. The complainant alleges in his bill that he is annually subjected to the payment of a tax of $99 10 on his land by the municipal corporation, without deriving any benefit therefrom, as no part of his land is required for streets or houses, or any other purpose connected with the municipal organization of the city of * Athens, but is used by him exclusively for agricultural purposes, and that the result of the imposition of said tax on his land is to take his private property for public use without any compensation whatever, and therefore the law which imposes the tax upon his land within the corporate limits of the city, is unconstitutional and void. The power of taxation is vested in the sovereign authority of the state; no constitutional government can exist without it; its exercise is essential to the very existence of the state government. As was said by Chief Justice Marshall, in the case of The Providence Bank v. Billings, 4 Peters' Reports, 561: "It resides in the government as part of itself, and need not be reserved where property of any description, or the right to use it in any manner, is granted to individuals or corporate bodies.

However absolute the right of any individual may be, it is still in the nature of that right that it must bear a portion of the public burdens, and that portion must be determined by the legislature. This vital power may be abused; but the interest, wisdom and justice of the representative body, and its relations with its constituents, furnish the only security against unjust and excessive taxation, as well as against unwise taxation." By the constitution of this state, the power of taxation over the whole state shall be exercised by the general assembly only to raise revenue for the support of government, to pay the public debt, to provide a general school fund, for common defense, and for public improvements; and taxation on property shall be ad valorem only, and uniform on all species of property taxed. The general assembly may grant the power of taxation to the county authorities and municipal corporations, to be exercised within their several territorial limits. There is no pretense that the land of complainant, which is taxed, is not within the territorial limits of the municipal corporation, and that it was within those limits when he purchased it, or that the rate of taxation is greater than is authorized by the charter of the city, or that it has not been assessed upon the ad valorem and uniform principle as required by the constitution; but the complaint is, that inasmuch as he has no use for the municipal organization, *and inasmuch as it is of no practical benefit to him therefore, to tax his land $90 00 a year for the benefit of the corporation, is taking his private property for public use without compensation, and therefore the law which authorizes the assessment and collection of the tax on his land within the limits of the corporation, is unconstitutional and void. Tax laws, as...