City of Atlanta v. Scott

Atkinson, J. At the beginning of the year 1921, the mayor and council levied an ordinary tax for the full amount which was authorized under the municipal charter. At the time this was done it was estimated that the amount of taxes so levied would not meet all of the expenditures contemplated by the mayor and council in meeting demands upon the city and current expenses for the year 1921. Thereupon an additional tax was levied, on the hypothesis that the provisions of the charter of the city relating to an emergency tax would authorize the levy of such additional tax. A copy of the provision .of the charter referred to follows: “In addition to the ordinary tax herein allowed, the mayor and councilmen and aldermen may, in case of emergency, — 13 — to be judged of by them, levying an extraordinary tax, not exceeding one half of one per cent, (on the taxable property of said city), the said extraordinary tax to be added to the ordinary tax, and collected at the same time, and used for the same purpose.” City Code of Atlanta, 1910, § 124. The plaintiffs in attacking the ordinance contended that no emergency existed; and therefore that the city did not have authority, under the above provision of the charter, to levy the so-called emergency tax. The city contended, firstly, that the provision of the'charter above quoted conferred on the mayor and council absolute power to determine whether or not an emergency existed; and secondly, the circumstances under which the extraordinary tax was levied were such as to require the trial judge to hold, as a matter of law, that an emergency did in fact exist. These questions will be dealt with in their order. 1. The first question depends upon a proper construction of the provision of the charter relating to the levy of an extraordinary ■tax. In a somewhat similar case it was said: “We are here pealing with the -taxing power, proceedings in which are always in 'invitum,— a power which, when exercised under delegated authority by a municipal corporation, is always subject to rigid scrutiny, first, to determine whether the power actually exists; and, second, to determine whether it has been exercised under the limitations imposed. For, says Sutherland, treating of acts delegating the power of taxation: ‘ Acts of this class are construed with great strictness. Two concurring principles leading to strict construction apply. Such acts affect arbitrarily private property, and are grants of power.’ 2 Lewis’s Sutherland on Stat. Constr. § 541.” San Christina Investment Co. v. San Francisco, 167 Cal. 762 (141 Pac. 384, 52 L. R. A. (N. S.) 676, 682). The principle above applied is well recognized, and lias been frequently applied in this State. Albany Bottling Co. v. Watson, 103 Ga. 503 (30 S. E. 270); Garrison v. Perkins, 137 Ga. 744, 752 (74 S. E. 541). The case of San Christina Investment Company v. City and County of San Francisco, supra, involved construction of the charter of the City and County of San Francisco, and the •validity of an alleged emergency tax. Section eleven of the charter there construed provided, in substance, that the annual levy “ shall not exceed the rate of $1 on each $100 valuation of the property — 14 — assessed.” Section thirteen of the same article and chapter provided : “ The limitation in § 11 of this chapter' upon the rate of taxation shall not apply in case of any great necessity or emergency. In such case the limitation may be temporarily suspended, so as to enable the supervisors to provide for such necessity or emergency. No increase shall be made in the rate of taxation authorized to be levied in any fiscal year, unless such increase be authorized by ordinance passed by the unanimous vote of the supervisors and approved by the mayor. The character of such necessity or emergency shall be recited in the ordinance authorizing such action, and be entered in the journal of the board. . .” The ordinance referred to in the decision was adopted in 1910, and declared: u Section 1. It is hereby recited, determined, and declared that a great necessity and emergency exists within the City and County of San Francisco, which requires that the limitation of taxation contained in § 11, chapter 1 of article III of the charter of said city and county be temporarily suspended, and that the character of such necessity and emergency is as follows, to wit: On the 18th day of April, 1906, a large number of the public buildings, and other structures, and much of the fire-department equipment of said city and county were destroyed by fire, and on said day a large extent of the public sewers of said city and county were damaged and destroyed by earthquake; that a large extent of the public streets of said city and county were damaged by the combined effects of fire and earthquake; also there is danger that the bubonic plague, prevalent in 1907, may recur, and provision should be made to prevent such recurrence; that it has been impossible to pave, repave, and repair streets, reconstruct and repair sewers, construct and repair the public buildings destroyed and damaged as aforesaid in April, 1906, from the appropriations heretofore made, and the great necessity and emergency hereby declared to exist has not been adequately provided for by previous tax levies made by the board of supervisors. Sec. 2. That by reason of the great necessity and emergency, herein set forth, large sums of money will be required to be expended by the city and county during the fiscal year ending June 30, 1911, for the paving, grading, repaving, and repairing of streets, for the reconstruction and repair of sewers, construction of and repairs to public buildings, for construction and equipment of fire-department — 15 — buildings, for tbe purchase of lands for fire-department buildings, for the reconstruction of, repairs to, and equipment of school-department buildings, for the construction and equipment of police-department buildings, and for the purchase of lands for police-department purposes, and for the continuation and enforcement of sanitary measures. That the large sums required for the aforesaid purposes cannot be obtained from the annual income and revenue of the city and county, and said necessary expenditures cannot be made without temporarily suspending the limitation upon the rate of taxation provided for in § 11 of chapter I of article III of the charter of said city and county.” After a review of a number of authorities, some of which are relied on by plaintiffs in error in this case, the court said: “ In the light of these fundamental principles we come to the immediate question: Does the charter of San Francisco in terms or by necessary implication make the determination of the supervisors as to the existence of a great emergency or necessity conclusive ? Manifestly it does not.' The language of the charter is not that the dollar limit may be suspended upon the declaration of the supervisors that a great emergency or necessity exists. It is that this limit may be suspended ‘ in case of [the existence of] any great necessity or emergency.’ Moreover, and as persuasive to this view, even were it not so plain as it appears, is the added fact that the supervisors are required to spread upon the journal f the character of such necessity or emergency.’ . . Webster’s International Dictionary defines f emergency ’ as ‘ An unforeseen occurrence or combination of circumstances which calls for an immediate action or remedy; pressing necessity; exigency.’ This definition is approved in People v. Lee Wah, 71 Cal. 80, 11 Pac. 851. It is the meaning of the word that obtains in the mind of the lawyer as well as in the mind of the layman. It was not in contemplation that the supervisors could foster and nurse such an emergency so as to spread their taxing power over an undetermined number of years. As little was it designed that under the head of emergency or necessity should be imposed taxes not bearing forcefully and directly on the relief, cure, or prevention of this emergency or necessity. Recalling once more to mind the fact that the exercising of the taxing power, for the reasons already given, is subject to strict construction, the trial court will — 16 — scrutinize the items presented: First, to determine whether or not the great emergency or necessity, within the meaning of the charter, existed at the time of the levy; and second, whether, if it be found that such emergency or necessity did in fact exist, any of the items in the levy do not fairly come within the purport and scope of such emergency levy. And, finally, it must be said that no argument of hardship or inconvenience will justify a court in setting at naught the written terms of a city’s charter, even at the instance of the city’s officials. As was said by this court in Connelly v. San Francisco, 164 Cal. 101, 127 Pac. 834: ‘ An inconvenience to the city does not justify the despoiling of its taxpayers.’ If these large revenues sought to be raised by the city do not fairly come within the purview of an emergency tax measure, it is for the city to meet the desired end either by the issuance of bonds or by an amendment to its charter. It is not for the courts themselves to amend this charter by striking therefrom any of its salutary and protective provisions.” See also Josselyn v. San Francisco, 168 Cal. 436 (143 Pac. 705). For other definitions of emergency see Seaboard Air-Line Ry. v. McMichael, 143 Ga. 689, 695 (85 S. E. 891); 20 C. J. 499. The foregoing discussion is pertinent to the case under consideration. Applying the principles therein stated, the provision of the charter of the City of Atlanta relating to an extraordinary tax does not provide that the mayor and council of the city may levy an extraordinary tax if the mayor and council shall declare an emergency to exist, but the provision is that an extraordinary tax may be levied, “in case of emergency, to be judged of by them.” If an emergency exists in fact, and if the mayor and council shall so declare, the tax may be levied; if however no emergency exists, the declaration by the mayor and council that an emergency exists will not authorize the tax. The provision of the charter does not expressly declare that the finding of the mayor and council that an emergency éxists shall be conclusive. The express provision of the charter is “in case óf emergene}',” and the legislature did not intend to leave to mere implication the power to conclusively declare the existence of an emergency, in view of the express declaration that an additional tax is authorized “in case of emergency.” 2. The evidence relied on to show the existence of an emergency upon which to base the levy of the additional tax is insufficient — 17 — for that purpose; and the court did not err in granting the interlocutory injunction. Judgment affirmed. All the Justices concur, except Gilbert, J., absent.