Pope v. Matthews

• Citation: 54 S.E. 152,125 Ga. 341
• Parties: POPE et al. v. MATTHEWS et al.
• Decision Date: 11 May 1906
• Court: Supreme Court of Georgia

54 S.E. 152

125 Ga. 341

POPE et al. v. MATTHEWS et al.

Supreme Court of Georgia

May 11, 1906

Syllabus by the Court.

Where on August 18, 1905, an act of the Legislature was approved (Acts 1905, p. 62), which provided that from and after its passage a new county, to be called the county of Toombs "shall be and is laid out" from certain existing counties, including a portion of the county of Montgomery and that the voters ""of said new county" should elect county officers on the first Wednesday in October thereafter; and where at the same session of the Legislature several similar acts for the laying out and organization of new counties were passed, and on August 21st a general act was approved (Id. p. 46) which provided for the organization of new counties in this state in one section of which it was declared that "all taxes due the state and county by persons residing in the new county, or upon property included within the limits of the new county at the time of the creation of the new county, shall be payable to the tax collector of the county from which said territory was taken"; and where on October 2d the county commissioners of Montgomery county, by virtue of the power contained in section 395 of the Political Code of 1895, levied an extra tax of $5 on each $1,000 of valuation of property, for the purpose of building a new courthouse in Montgomery county (no contract appearing to have been previously made), in addition to the general tax levy made upon recommendation of the grand jury under section 399 of the Political Code of 1895-- held, that the extra or unusual tax thus assessed at the will of the commissioners after the passage of the act laying out the county of Toombs, and two days before the election of its county officers at the time fixed in such act, could not be collected from persons whose residences and property were included in the portion of Montgomery county cut off and forming part of the new county.

Under the facts of this case, the levy of the tax for building a new courthouse, rested upon section 395 of the Political Code of 1895.

Pol. Code 1895, § 575, declares that, in counties where the alternative road law has been adopted, "the commissioners of roads and revenues, or ordinary, as the case may be, shall levy a tax additional to any now authorized by law, of not more than two-tenths of 1 per cent. on all the taxable property of the county." Such a tax is, therefore, prescribed by law to be levied annually, its amount being limited; and it stands more nearly like an ordinary annual tax for county purposes than an extra or special tax such as that referred to in the preceding note, which the law does not require to be levied annually, but which may or may not be levied in a particular year according to contingencies.

The county tax digests are not required to be completed before August 1st. The act approved August 21st was introduced in the House of Representatives on June 29th and was passed by that branch of the Legislature on August 8th and by the Senate on August 14th. Held, that the words "taxes due," employed in such act, did not exclude the collection of regular annual county taxes, although the ordinary or county commissioners had not actually levied them before the act was approved.

Error from Superior Court, Montgomery County; J. H. Martin, Judge.

Suit by G. N. Matthews and others against W. W. Pope and others, as commissioners. There was a decree for plaintiffs, and defendants bring error. Affirmed.

J. B. Geiger, for plaintiffs in error.

Joseph H. Hall, for defendants in error.

LUMPKIN J.

At the spring term, 1905, of the superior court of Montgomery county the grand jury recommended that the county commissioners levy for county purposes a tax of $1.95 on each $1,000 of valuation of property, and that they levy an ad valorem road tax of 25 cents on the $1,000 (the alternative road law being in force in that county). On August 18, 1905, an act was approved, the caption of which was, "An act to lay out and organize a new county from the counties of Tattnall, Montgomery, and Emanuel, to attach the same to a judicial circuit and congressional district, and for other purposes therein specified." Acts 1895, p. 62. It declared that "from and after the passage of this act a new county shall be and is laid out from the counties of Tattnall, Montgomery, and Emanual, as follows" (boundaries described and certain other provisions made). It was provided that the voters "of said new county" shall assemble at the county site (which was named) on the first Wednesday in October, 1905, to elect county officers. Seven other new counties were created by the same Legislature, under a constitutional amendment which had previously been adopted. On August 21st, three days after the act above referred to had been approved, a general act was passed, the caption of which was, "An act to provide for the organization of new counties in this state, to provide the manner in which elections for officers shall be held, prescribe qualifications for voters, fix the places for holding elections for officers in said new counties, and for the consolidation of the votes, the transfer of business from counties out of which said new counties were created to the new counties, to provide jurors for the courts sitting in the new counties, and for other purposes." Acts 1895, p. 46. On October 2d the county commissioners of Montgomery county levied a tax for county purposes aggregating $1.95 on the $1,000, which was divided under different heads, to pay sheriffs, jailers, or other officers, to pay the per diem of jurors, to pay for supporting paupers of the county, and to pay expenses of bailiffs and non resident witnesses. In addition to this they also levied a tax of $5 on each $1,000 of taxable property "to build or repair court houses or jails, bridges or ferries, or other public improvements," and also a tax of 25 cents on the $1,000 for working the public roads. On October 4th in accordance with the act of the Legislature laying out the county of Toombs, county officers were elected. At the November term of the superior court of Montgomery county the grand jury recommended that the county commissioners erect a new courthouse at a cost not to exceed $45,000, that the amount necessary be raised by issuing bonds, and that the ordinary call an election for that purpose. This action of the grand jury appears to have been purely of an advisory or recommendatory character. Certain taxpayers residing in that portion of originally Montgomery county, which was cut off therefrom, and formed a part of the new county of Toombs, filed an equitable proceeding to enjoin the collection from them of the two items of $5 on the $1,000 of valuation, and 25 cents on the $1,000. They did not contest the right to collect from them the remaining taxes levied for county purposes. On the hearing, the presiding judge granted the injunction, and the defendants excepted.

The county commissioners, under recommendation of the grand jury at the spring term, levied, for general county purposes taxes aggregating the amount which had been recommended, in accordance with section 399 of the Political Code of 1895. In addition to this they levied a tax of $5 on each $1,000 of valuation "to build or repair courthouses or jails," etc. It is clear, both from the method of procedure, and from the power asserted in the answer of the defendants, that as to this item they were not proceeding to levy ordinary taxes for the general county purposes, but were relying upon section 395 of the Political Code of 1895, authorizing the ordinaries (here commissioners) to levy an extra tax sufficient to carry into effect sections 351 and 352 of the Political Code of 1895. It is stated in the answer, that this levy "was made thus large in order that defendants might have some funds with which to pay in part the price of a new courthouse, which they intended constructing had it not been for the litigation instituted by the plaintiffs for the purpose of preventing its construction. Defendants deny that they have no right to levy a tax for courthouse purposes without the recommendation of the grand jury of the county, but allege, to the contrary, that the law especially vests them with the right to exercise a discretion in this...