Mayor v. Finney

• Citation: 54 Ga. 317
• Court: Supreme Court of Georgia
• Decision Date: 31 July 1875
• Parties: Mayor and Council of the City of Brunswick et al, plaintiffs in error. v. N. S. Finney et al., defendants in error.

54 Ga. 317

Mayor and Council of the City of Brunswick et al, plaintiffs in error. v. N. S. Finney et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1875.)

Equity. Parties. Notice. Taxes. Municipal corporations. Constitutional law. Charter. Before judge Harris. Glynn County. At Chambers. January 19th, 1875.

N. S. Finney et al. filed a bill against Jacob E. Dart et al., making the following averments: Defendants, assuming to act as mayor and council of the city of Brunswick, passed an ordinance on the 3d day of July, 1874. entitled "An ordinance to provide for the current expenses of the city of Brunswick, the payment of the past due coupons of said city, and the retiring of the city currency." It provided that a tax of one and three-fourths per cent, be levied upon all the property within said city, for the purposes thereinafter set forth, for the year 1874. It then proceeded as follows: "Sec. 2d. Be it further ordained, That one-half of one per cent, of the tax above levied be appropriated to the cancellation of the *coupons due by the city previous to the 1st July, 1874; that one-half of one per cent, of the said tax be appropriated to the payment of the current expenses of the municipal government of said city; and that three-fourths of one per cent, of said tax be appropriated to the retiring of the currency of said city or due bills issued for the retirement of said currency." Section 3d required the treasurer to open his books for tax returns immediately, and close them on the 4th of August. 1874. Section 4th required the treasurer to keep three separate accounts, according to the distribution aforesaid, and authorized him to receive one-half of one per cent, of each tax payer's taxes in past due coupons or legal currency, for the purpose of cancelling coupons as aforesaid, and one-halt per cent, in approved accounts or legal currency, for defraying the current expenses of the municipal government, and three-fourths per cent, in due bills issued for the redemption of city currency, and forbade him from paying out any portion of the money, except as therein appropriated. Section 5th declared the first quarter of the taxes payable on or before the 10th of August, 1874; the second, on or before the 20th August, 1874; the third, on or before the 18th September, 1874; and the fourth, on or before the 1st October, 1874. The 6th section required the treasurer to issue executions without delay for the full amount of the taxes due for the year against any defaulter failing to pay promptly either installment as aforesaid.

The last section repealed all conflicting ordinances. This ordinance was approved July 3d, 1874.

On the 10th October, 1874, G. C. Fahm, assuming to act as clerk and treasurer of the city of Brunswick, under an election to said office by said pretended mayor and aldermen, acting collectively as the mayor and council of the city of Brunswick, issued the following notice to the tax-payers:

"Notice to Tax Payers. "The treasurer's books will be finally closed on the 20thinstant for the collection of city taxes for the year 1874, and *for all taxes unpaid executions will issue against the property of those failing to settle all taxes due, and be placed in the hands of the marshal for collection.

(Signed) "G. C. Fahm, Tieasurer.

"October 10th."

This notice was published once in the Brunswick Seaport Appeal. Between the 20th October, 1874, and December 5th, 1874, the pretended clerk and treasurer issued tax fi. fas. against complainants, which were levied on their property by one B. A. Fahm, assuming to be marshal of the city of Brunswick, under an election by said pretended mayor and council of Brunswick, who advertised said property for sale on the first Tuesday in January, 1875.

All the foregoing acts are void, because they were done under an act to consolidate and amend the several acts incorporating the city of Brunswick, and for other purposes therein mentioned, approved August 27th, 1872, and published in acts of 1872, page 151. The said act is void, because the 59th section provided for its submission to the legal voters of the city of Brunswick for adoption or rejection, and provided that if they rejected it the act should be void. This was an attempt by the legislature to delegate to the voters of Brunswick the power to repeal or to make a law.

Said ordinance is void, because it does not provide for the collection of the city tax in quarterly installments, as required by the charter; and said charter makes the fiscal year commence on the first Monday in January, annually, and no ordinance could have been passed for a quarterly collection of taxes after the first quarter of the fiscal year.

Said executions were null and void because issued before the treasurer had given thirty days notice of the closing of his books, as required by said charter.

The ordinance was further void, because it attempted to levy a tax of one and three-fourths per cent., in violation of the act approved February 28th, 1874, entitled an act to limitand regulate the assessment and collection of taxes by *municipal authorities in this state, except so far as relates to the city of Savannah, published in the acts of 1874, page 109. Complainants prayed for an injunction against said fi. fas.

The bill was sworn to by W. F. Stewart, as agent for three of the complainants. The chancellor issued a temporary injunction, with an order to show cause, on the 12th of January, 1875, why the injunction should not be made permanent. The bill was served upon said marshal in person, and upon said mayor and council by leaving a copy with said clerk and treasurer.

The defendants demurred to the bill upon the ground that it contained no equity for relief as against the defendants, because defendants were not proper parties, but the mayor and council of Brunswick were the parties who should have been defendants; because complainants had an adequate remedy at law, and because the bill was argumentative.

For further cause why the injunction should not be perpetuated, an answer was filed, in brief, as follows: These defendants were mayor and council, and said clerk and marshal were elected, said ordinance passed, said assessment made, and said fi. fas. were issued and levied by virtue of said act of 24th August, 1872. Said act is valid and of force, and authorized all the acts aforesaid. Jacob F. Dart is no longer mayor of Brunswick, and W. H. Rainey, C. G. Moore and W. Dart, Jr., no longer aldermen, and are not now assuming to act as such, and have nothing to do with said executions. They say the ordinance is legal, because the charter does not provide that the collection of taxes shall be made quarterly, in point of time, but in quarterly installments of amount. Said executions are not void for want of thirty days' notice of the closing of the treasurer's books, because said notice was published for thirty days before issuing executions, by posting the same at the door of the city hall. Said ordinance is not opposed to said act of February 28th, 1874; and if it is, it is not void, because said act is a general act, and does not change the provisions of said charter, which *is a special act. They further objected that the bill was not sworn to by a competent person, as required by law.

All the averments in the answer were proven by certified extracts from the minutes.of said mayor and council, and by affidavits of the assessors, of the clerk and treasurer, and of the marshal.

The injunction was made permanent, and the defendants excepted.

N. J. Hammond; Stephen C. DeBruhl, for plaintiffs in error.

Goodyear & Harris, by brief, for defendants.

McCAY, Judge.

1. There is no express requirement of the law that a bill seeking an injunction shall be sworn to by the plaintiff. The chancellor ought not to grant so harsh a writ unless the factsupon which its justice depends are sworn to; but that verification may be by the oath of some other than the plaintiff. Indeed, if the facts be only known by some other person, it is eminently proper the verification should be by him. This is plainly recognized by our act of 1870, Code, section 3211, which treats the sworn allegations of the bill, or the affidavit of some competent person, as sufficient cause on which to base an injunction, even without a...