Palmer v. Phinizy

Beck, P. J. The controlling question in this case is whether the defendants, the owners and transferees of the fi. fas., were entitled to recover *of the plaintiff interest on the fi. fas. And a de-' termination of. that question renders it necessary to consider and construe certain acts of the General' Assepibly and sections of the Civil Code relating to interest on tax fi. fas., and also provisions of certain statutes relating to penalties imposed for failure to pay taxes, and how the provisions imposing penalties in certain cases affect the provisions as to interest on tax executions. Section 1144 of the Civil Code is taken from the act approved November 11, 1889 (Acts 1889, p. 31), and reads as follows: “All executions issued for taxes due the State or any county thereof, or any municipal corporation therein, whether issued on assessments for permanent improvements of streets or sewers of- said municipal corporation, or otherwise, shall bear interest at the rate of seven per cent, per annum from the time fixed by law for issuing the same: Provided, that this section shall not apply to taxes or tax fi. fas. issued by any municipal corporation imposing penalties for failure [591] to pay taxes.” The legislature thereafter, by au act approved December 24, 1890 (Acts 1890, p. 50), amended the statute quoted above, so as to render the former statute inapplicable to cities having a population of 60,000 or more at the time of the approval of the act. This act, however, does not affect the City of Augusta, as it did not have a population of 60,000 at the time of the passage of the act; and it is therefore unnecessary to consider whether the act is constitutional or not. In the case of Burkhart v. City of Fitzgerald, 137 Ga. 366 (8), 368 (73 S. E. 583), it is said; “Executions issued for taxes due a municipal corporation do not bear interest where the municipal corporation, under charter authority, imposes a penalty for failure to pay the taxes. A municipality can not collect both a penalty for failure to pay taxes and interest on tax executions. Civil Code, § 1144. The charter of the City of Fitzgerald, as indicated by the excerpt quoted in the preceding note, contained a provision for the collection of a penalty; and hence no interest could be collected.” In an act, entitled an act to authorize the City of Augusta to impose a penalty for failure to pay taxes, etc., which was approved December 9, 1898 (Acts 1898, p. 126), it was declared that “the City Council of Augusta shall be and is hereby authorized to impose a penalty in the way of an additional per centum upon all taxes, assessments, fines, license fees, and any sums due for the use of water through the water pipes of said city, which may not be paid within the time fixed by the said city council.” And during the years in which the taxes hereinbefore referred to were levied and assessed there was an ordinance of the City Council of Augusta imposing a penalty in the way of an additional per centum upon all taxes, etc., under the provisions of the act of December 9, 1898, quoted above. Plaintiffs in error (the defendants in the court below) insist that this act of 1898 is unconstitutional, but did not make this attack in the court below; and consequently this court will not pass upon the constitutionality of the act. The petitioner did insist that to give a certain construction to the act would render the act unconstitutional, but in the same paragraph insisted that this is not the right construction; and a contention like this is not an attack upon the constitutionality of the act. When the act of 1898, cited above, is construed in connection with the statute which we have cited and which prohibits the collection of interest when a penalty [592] is imposed, we are clear that interest could not be collected on the tax executions here; and the court properly granted the injunction. Judgment affirmed. All the Justices concur.