Townsend v. Smith
| Decision Date | 03 March 1916 |
| Docket Number | 284. |
| Citation | 87 S.E. 1039,144 Ga. 792 |
| Parties | TOWNSEND v. SMITH, ORDINARY. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The provisions of the Constitution of Georgia inhibiting the delegation by the Legislature to any county of the right to levy a tax for any purpose, except for those specified in article 7, § 6, par. 2, among which purposes is that of providing for sanitation, is not offended by an act authorizing the appropriation of funds for carrying on and aiding in the work of the eradication of cattle ticks and the suppression of contagious and infectious diseases of live stock. The expression, "provide for necessary sanitation," is sufficiently comprehensive to authorize the raising and the expenditure of money for the purposes within the purview of the statute referred to.
The words, "to pay the county police, and to provide for necessary sanitation," were not stricken from article 7 § 6, par. 2, of the Constitution (Civ. Code 1910, § 6562) by the amendment proposed by the act of August 4, 1910 (Acts 1910, p. 45). The only change made in this paragraph of the Constitution was the elimination of the words, "in instructing children in the elementary branches of an English education only."
Additional Syllabus by Editorial Staff.
Where the petition alleges that the acts of the ordinary in expending county funds for the eradication of cattle ticks are illegal, but also assigns as the reason of illegality that the act under which he proceeds is violative of the Constitution, plaintiff cannot for the first time on appeal raise the point that the act in question vests the power to make the appropriation in the county commissioners or board of roads and revenues, and not in the ordinary.
Error from Superior Court, Lumpkin County; J. B. Jones, Judge.
Action by W. B. Townsend against H. B. Smith, Ordinary. Judgment for defendant, and plaintiff brings error. Affirmed.
W. B Townsend brought his petition against H. B. Smith, ordinary alleging that the defendant was proceeding to expend public funds of the county, raised by taxation for the purposes provided by law, in aiding the state or the United States, or both, in putting into effect, in the county of Lumpkin, the law embodied in an act approved August 16, 1909 (Acts 1909 p. 131), known as an act to protect the live stock of the state of Georgia from contagious or infectious diseases; that the ordinary purposes to expend the aggregate sum of $1,500 or other large sum, in constructing vats, employing inspectors, and putting into operation other means to carry into effect the provisions of the act referred to; that the expenditures contemplated are without authority in law; that it is not the purpose of the ordinary to use the public funds for quarantine purposes, but his purpose is to apply the funds to the eradication of cattle ticks in the county of Lumpkin; that there are no cattle in any of the counties adjoining Lumpkin county infected with contagious diseases, sufficient to warrant a quarantine against such cattle; that the ordinary is acting under the provisions of section 7 of the act of the Legislature referred to above, which is embodied in section 2709 of the Civil Code; that the application of any public funds of the county raised by taxation for the purposes above mentioned is illegal and void; and that so much of said act and of said Code section as attempts to authorize the application of public funds to the purposes so stated is unconstitutional and void, in that it allows the application of public funds raised by taxation to a purpose not within the purview of that portion of the Constitution contained in article 7, § 6, par. 2, enumerating the purposes for which taxation by a county may be authorized. The defendant demurred generally and specially, and filed an answer to the petition. Testimony was submitted at the interlocutory hearing, and after the submission the court refused the injunction, and the petitioner excepted.
O. J. Lilly, of Dahlonega, for plaintiff in error.
J. F. Pruitt and R. H. Baker, both of Dahlonega, and H. H. Perry, of Gainesville, for defendant in error.
BECK, J. (after stating the facts as above).
The acts of the ordinary are alleged to be void upon the sole ground that the law from which he derives the authority to expend the funds of the county to protect the cattle against infectious diseases is unconstitutional and void. In the brief of counsel the position is taken that, under the allegations of the petition, whether the act of the Legislature is void because unconstitutional or not, the ordinary is not empowered by that act to expend the public funds of the county for the purpose contemplated, inasmuch as the act itself, so far as it authorizes an appropriation of public funds for expenditure in the employment of means to effect the eradication of cattle ticks, vests the power to make the appropriation in the county commissioners or board of roads and revenues. But we do not think that this attack upon the authority of the ordinary to act and to exercise powers conferred in the statute upon the county commissioners or board of roads and revenues should be considered now, as it is mentioned for the first time in the brief of counsel for the plaintiff. It is true that in the petition the charge is made that the acts of the ordinary are illegal, but counsel goes further in the petition and in a succeeding paragraph states why the acts are illegal, and the only reason assigned is that the source of the ordinary's authority to make the appropriation of the funds is the act in question, and that the same is without validity because it violates the Constitution of the state of Georgia in that it authorizes the use of money raised by taxation for a purpose not contemplated in that section of the Constitution limiting the taxing power of...
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