Yow v. Sullivan

Cobb, P. J. (After stating the facts.) 1. The original tax levy of September 9, 1905, was before this court in the case of Sullivan v. Yow, 125 Ga. 326. It was then held that the collection of the tax under such levy was properly enjoined, for the reason that the order levying the tax did not comply with the provisions of the law requiring that the levy should specify the per cent, levied for each specific purpose. It was said: “The order of the ordinary levying the tax not conforming to the plain requirements of the law, all proceedings under the tax levy in its present shape were properly enjoined. . . All proceedings under the tax levy were properly restrained until the county authorities make the levy conform to the requirements -of the law. In the light of what has been said, the county authorities may readily make the levy comply with the requirements of the law, as to the statement of the percentage of each item,” etc. This court did not, in terms, direct that the tax levy should be amended, but the language in the opinion clearly indicates that this could be done. The order was held unenforceable in its then shape, but there was no ruling to the effect that the order was void in the sense that it could not be amended or completed by supplying the omissions which rendered it unenforceable in its then condition. After the decision in that cáse the county authorities passed an order which is set forth in the statement of facts. [192] It is contended that this order is, in effect, a new levy, and that, being made in 1906, it is a nullity, and no taxes can be collected thereunder. The argument is that county taxes must be levied each year; and that if no levy is made during a year, the county authorities have no power, in a subsequent year, to make a levy, as such action is retroactive in its nature. It would certainly be a great hiatus in the law if this were true. County authorities might negligently, or wilfully, fail or refuse to make a levy before the end of the year, and, if the contention of counsel is correct, persons having claims or demands against the county would be without a remedy. We will not undertake to determine this question under the present record; for when the order of July 4, 1906, is properly construed, we think it is merely an amendment of the levy of September 9, 1905, made in conformity with the suggestions which were thrown out when the controversy was before this court on the former occasion. The order recites the former case, and the decision of this court, and then proceeds to make a levy in exact conformity with the ruling of the court in reference to the various items therein contained. It is true it does not use the word “amend,” or any similar expression; but when the order is construed in its entirety, no other reasonable conclusion can be reached than that the county authorities were attempting to carry into effect, in reference to the levy of September 9, 1905, the law as laid down in the decision of this court. 2. The judge held that the property owners of that portion'of Stephens county which was originally Franklin county were liable for the usual, ordinary, and current expenses of the county, as embraced in the tax levy made after the couniy was created but during the year .of its creation. He also held, that the cost of erection of new bridges was not an usual, ordinary, and current expense of a county, and that the property owners in the new county were not liable to be taxed for the same unless there were outstanding contracts at the time that the new county was created j that the property owners in the new county could be justly charged with their proportion of the ordinary expenses of the county for the current year in which the county was created, but they could, not be justly charged for permanent improvements made under a contract which was entered into after the new county was created. This decision is in accord with the reasoning in the decision of [193] Pope v. Matthews, 125 Ga. 341. In that case it was held, where a contract for a new court-honse was entered into after the new county was created but before it was organized, that the property owners in the new county were not liable for this unusual ex- ' pense, but were liable for all usual and ordinary current expenses for the year in which the county was created. This decision was based upon the theory that the new court-house was a new permanent improvement to the county which necessarily had not been and would not be of any benefit .to the property owners of the new county, and therefore the entire expense must be borne by the property owners of the old county. The repairing of public buildings, bridges, and like structures, brought about by the use of the same in past years, would be an expense properly chargeable against the taxpayers of the county as it existed, and it would not be inequitable or unjust to require the property owners in the new county to bear their proportion of the expenses of this character that had to be borne during the year in which the new county was created. 3. It is contended that the execution issued against the railroad company is invalid, for the reason that the fax levy purports to levy a tax only upon the property in the county as it appears upon the tax digest of the county, and that therefore there is no basis upon which the comptroller-general can issue an execution. The county authorities are authorized to levy a tax upon all taxable property in the county, and, when levied, it may be collected in the manner prescribed by law. The law requires the ordinary to certifjr to the comptroller-general the amount of the tax levy of the county, and then the comptroller-general, using this as a basis, ascertains the amount of taxes due by the railroad company by applying the rate to the returns of the railway company in his office. County authorities have no power to exempt the property of a railroad company from taxation, and it will never be presumed that such was their intention. The rate of tax is fixed by the order of the county commissioners. That portion of the order which relates to the tax digest of the county will be construed to refer to the taxes which are to be collected by the tax-collector. The order of the county authorities was sufficient to authorize a certificate to the comptroller-general of the amount of the .tax levy for the year, and, with that certificate before him, he had authority, [194] under the law, to ascertain the amount of taxes due by the railroad company, and, upon its failure to pay, to issue execution therefor. The decision in Georgia Railroad Co. v. Hutchinson, 125 Ga. 762, dealt with an act of the General Assembly authorizing the levy of a tax, and not with the order of the county authorities levying the tax ■ under existing laws. In that ease it was held, where an act limited the authority to levy a tax to property upon the digest of the county, that 'no tax could be collected upon property of a railway company. The general law of the State levies the tax for county purposes on railroad property, and the mere fact that the county authorities, in the order providing for the collection of taxes, apparently limited the tax to property upon the digest of the county does not prevent the rate therein fixed from being the basis for the comptroller-general to fix the amount due by the railroad company. It is also contended that the levy was illegal, for the reason that it is stated to be a levy for $15.10 on the thousand in the aggregate, while the various items, added together, amount to $15.16. The law requires that the different'percentages shall follow each item, and the aggregate, as indicated by the addition of these different percentages, would be the valid tax lev3r, and any other statement in the order conflicting therewith would be treated as simply surplusage. The difference between the amount stated in the preliminary part of the order and the aggregate of the percentages was eVidentfy due to á clerical error; but even if not, the aggregate indicated by the true addition of thS different percentages would be the lawful levy. It was not necessary that the first item of the levy should specify the amount to be used for each of the purposes therein indicated. The levy was in the language of the code. See Gaines v. Dyer, 128 Ga. 585. Counsel for the county authorities, in their bill of exceptions, complain that. the effect of the.order, so far as the new bridges are concerned, is to prevent the collection of, the tax from the Southern Railway Company on that portion of its property which is located in Franklin county as that county now exists. We do not think that this is a proper construction of the order of the judge. The purpose of the petition was to restrain the county authorities of Franklin county from collecting what were alleged to be illegal taxes upon the property located in Stephens county, and the order is to be construed in the [195] light of tbe case as made by the pleadings. The county authorities ■are, under the order, required to eliminate from the levy, so far as the property owners in Stephens county are concerned, all •amounts to be used in the erection of new bridges; and when this is eliminated from the executions, they can proceed for the balance. 'The property owners of Franklin -county as it is now constituted, whether individuals or railway companies, are liable for the entire amount fixed in the levy. The original levy of September '9, 1905, being defective, and this court having held that proceedings thereunder were properly enjoined until it was made to conform to the law, the taxpayers should have been given a reasonable rime, after the levy was amended, to pay the taxes before executions were issued. There is no complaint that a reasonable time has. not been allowed for this purpose. The action of the county authorities is attacked as being invalid and not furnishing a basis for the collection of taxes at all. In the case as presented to the trial judge we see no error in any of his rulings. Judgment on each bill of exceptions affirmed. All the Justices concur.