Cobb County v. Allen

Hill, Justice. Defendants Cobb County and the tax commissioner of Cobb County appeal from a permanent injunction granted to plaintiff taxpayers which enjoined the collection of the county fire tax in an area of the county annexed into the City of Márietta. Pursuant to a local constitutional amendment (Ga. L. 1937-1938, Ex. Sess., p. 20, as amended by Ga. L. 1952, p. 516), Cobb County passed a resolution in 1974 which was then submitted to the voters establishing a single fire district composed of the entire unincorporated area of the county, excluding only the cities of Marietta, Smyrna, and Austell. At the time the resolution was passed and the question was put to the voters, the plaintiffs’ property was in the unincorporated portion of Cobb County. In August 1975 the plaintiffs’ property was annexed into the City of Marietta. As residents of the City of Marietta, plaintiffs are subject to the general tax imposed by the city upon their property, a portion of which goes for fire protection provided by the fire department of the City of Marietta. However, Cobb County contended that the annexation did not change the boundaries of the fire district and that the residents of the annexed area are still subject to the fire tax levied by the county on residents of the county fire district for fire protection provided by the county. Plaintiffs filed a petition in Cobb Superior Court seeking to enjoin the county from collecting the fire tax from residents who had been annexed into the City of Marietta. After a hearing, the trial court found that the boundaries of the City of Marietta are excluded from the county fire district as the city boundaries may exist from time to time, and granted the permanent injunction. The county appeals. The law favors expansion of the corporate limits of municipalities. As evidence of this, the General Assembly has prescribed two means for annexation (application and [911] referendum) but no means for de-annexation. The law does not favor the duplication of municipal services by a county within a municipality. See Code Ann. § 2-7901 (a) which requires that a county have a contract to provide services within a municipality. Common reason abhors the unnecessary duplication of governmental services. The law, as well as the public, seeks to avoid taxation for the unnecessary duplication of governmental services. "A tax law will not be construed to tax the same property twice, unless such a conclusion is constrained either by the express provisions of the law or by necessary implication.” Coca-Cola Co. v. City of Atlanta, 152 Ga. 558, 570 (110 SE 730) (1922). Thus, where a county creates a fire district with its borders adjacent to the limits of a city, and the city expands its limits (as the law favors), authority for duplication of fire protection services by the county in the area annexed, and taxation by the county for such services, will not be presumed. A resolution creating a county fire district will not be construed to authorize the county to collect a fire tax on property annexed into a city unless such conclusion is required either by express provisions of law or by necessary implication. In the case before us, the county fire district was composed of "all areas in Cobb County, excluding the incorporated area of the cities of Marietta, Austell, and Smyrna.” The resolution did not specify "as those cities now exist.” The resolution is indefinite as to whether it excluded those cities as they then existed or as they may exist from time to time. Hence the duplication of services and taxation therefor in the annexed area is neither express nor required by necessary implication. As the dissenting opinion demonstrates, the resolution requires interpretation. Because of the numerous legal considerations involved, we find that the resolution is not to be construed either way depending upon the intent of its drafters, but is to be construed against duplication of services and double taxation and in favor of municipal annexation, unless the contrary clearly appears (in which event interpretation should have been unnecessary). Upon review of the record and applicable law, we find [912] no error. Argued February 10, 1976 Decided May 17, 1976 Rehearing denied June 8 and June 23, 1976. Awtrey, Parker, Risse, Mangerie & Brantley, A. Sidney Parker, Dana L. Jackel, for appellant. Downey, Cleveland & Moore, Lynn S. Downey, for appellees. Judgment affirmed. All the Justices concur, except Ingram and Hall, JJ. who dissent.