Elder v. Collier , 100 Ga. 342 ( 1897 )

Lumpkin, Presiding Justice.

In 1875, tbe General Assembly passed an act for tbe relief of maimed and indigent soldiers. It provided for the levying of a special county tax for the purpose of raising a fund from which to pay $100 annually to each Confederate soldier wbo bad not more than $1,000 of taxable property, and wbo bad lost both eyés or two limbs in military service during tbe late civil war. See Acts of 1875, pp. 107, 108. Tbe present Constitution, wbicb was ratified by a vote of tbe people on tbe 5th day of December, 1877, declares: “Tbe General Assembly shall not have power to delegate to any county tbe right to levy a tax for any purpose, except for educational purposes in instructing children in tbe elementary branches of an English education only; to build and repair tbe public buildings and bridges; to maintain and support prisoners; to pay jurors and coroners, and for litigation, quarantine, roads, and expenses of courts; to support paupers and pay debts heretofore existing.” Civil Code, §5892.

"W. R. Elder, a soldier wbo bad lost'both of bis eyes while serving in tbe Confederate army, was, under tbe provisions of tbe act above cited, paid an annual pension of $100 from tbe treasury of Fulton county for a period of more than fifteen years which dncluideid tbe year 1895. The board of commissioners of that county having refused to levy any tax for tbe year 1896 for tbe payment of pensions of this character, the plaintiff in error applied for a mandamus to compel them to do so. His bill of exceptions assigns as error the refusal of the superior court to grant the writ of mandamus. One of the reasons assigned in the answer of the commissioners for declining to levy the tax was, that the act of 1875 had been abrogated by the above quoted paragraph of the constitution. We are constrained to hold that the position thus taken was correct, and that the superior court rightly so adjudged. While we regret that the provisions of our constitution relating to county taxation are so stringent ,as to exclude from the benefits provided for in the act of 1875 the few remaining veterans in whose behalf it was enacted, and whose number-is annually decreasing, we have no election but to carry ou't the will of the people as expressed in their organic law. For ourselves, we would have been very glad indeed if these old heroes had been permitted to continue to draw their annual stipend from the counties in which they respectively live; but this, we think, was forbidden by the people themselves in convention assembled. It is obvious, however, that the old soldiers were not overlooked, for that very convention provided for furnishing them with artificial limbs. Civil Code, §5882. Having done this, and having specifically limited the purposes for which county taxes might be levied, without including any provision for Confederate soldiers, the conclusion is irresistible that there was no intention to allow anything to them from county treasuries.

It was insisted here that the language, “the General Assembly shall not have power to delegate to any county the right to levy a tax' for any purpose,” etc., was not intended to deprive counties of any existing right to levy taxes. We find it impossible to give our assent to the correctness of this proposition. To do so would simply be to emasculate the paragraph in question of much of the force it was designed to have. In other words, we think this paragraph means that there shall be no county taxes for any purposes except those expressly therein enumerated. A casual reading of it will .show that it confers no authority for paying pensions to sol•diers out of funds to be raised by county taxation. It would be invidious to declare that the words “to support paupers” were applicable to them; and moreover, the act of 1875 itself allows pensions to soldiers having taxable property not ■exceeding $1,000 in value. A man owning property to this amount could in no event be called a pauper.

Another contention of the plaintiff in error wias, that the .act of 1875 was kept in force by another paragraph of the constitution, which declares that: “Local and private acts passed for the benefit of counties, cities, towns, corporations, .and private persons, not inconsistent with the supreme law, nor with this constitution, and -which have not expired nor been repealed, shall have the force of statute law, subject to judicial decision as to their validity when passed, and to .any limitations imposed by their own terms.” Oivil Code, ■§5935. This paragraph certainly cannot be held applicable to the act of 1875, which was a general, and not a local or ■private law. This, we think, is apparent without argument.

The provisions of the constitution embraced in section 5882 of the Oivil Code have been extended by various .amendments looking to the further relief of Confederate ¡soldiers, and also bestowing certain benefits upon their widows. So it seems to be the settled policy of the State to provide pensions for these classes of persons exclusively by State taxation; and it is not improper to remark that the various General Assemblies which have dealt with these matters have been as liberal in this respect as the financial (condition of the people of this State will allow.

Judgment affirmed.

All the Justiees concurring.