Waller v. Perkins , 52 Ga. 233 ( 1874 )

McCay, Judge.

1. It is very difficult, perhaps impossible, to say exactly what was the true intent of the framers of the Code on some of the leading points made by this record. As to the taxes necessary to build and repair the public buildings of the county, such as the court-house, jails, etc., it is very plain, from sections 496, 497 and 503 of the Code, that the ordinary acts in his discretion, subject only to the control of the judge of the superior court, by proceeding, formally instituted, charging abuse. It seems to us to follow, as a matter of course, that this discretion, limited, as we have said, must extend also to taxes to pay a debt contracted for these purposes. The object of leaving the ordinary uncontrolled in these cases is, that the necessity for a new jail or new court-house, etc., may arise at any time. Eire, or storm, or accident may, in a day, sweep either of them away. And it seems to have been thought important that a sure means should always be at the command of the ordinary to replace them; and it seems to us just as important that the ordinary should not be hampered or limited in his- power to raise money to pay a debt or meet a contract, foigthese purposes, as to raise the money before the work is done.

2. It is clear, too, that the ordinary may, if the grand jury fail or refuse to recommend as provided by section 509, levy a tax, without any recommendation, to meet the necessary county expenses, and to pay any debts in judgment, or for which there is a mandamus. By the terms of section 511 there is no limit upon the extent to which the ordinary may go. ■ The language is broad r “The necessary current expenses, and any debis in judgment, or for the payment of which there is a mandamus.” It would seem, by the letter of this section, that if these necessary expenses, judgments, etc., are large, that a tax may be laid to meet them, though it may take two' hundred per cent., or, indeed, any rate. And if the grand jury fail to recommend a sufficient rate, it is the duty of the ordinary'to* lay a.sufficient rate, whatever that may be. But in view of the long established practice of this state, as indicated by its previous laws upon this subject, and in view of the first section of this chapter, (section 509*,) we think this broad grant of power in section 511 is to be limited to fifty per cent, on the state tax. There would seem to be no sense in the limitation of section 509* to fifty per cent., if, in the very next section, so broad a power was intended to be given.

3. The tax for the support of the indigent poor, authorized by the act of 1818, has never needed the recommendation of the grand jury. It always has been at the discretion of the inferior court or ordinary. And this is true of the school tax allowed by sections 1201 and 1202 of the old Code. There is nothing1 indicating a necessity for a recommendation. Indeed, up to twenty-five per 'cent., it would seem the intent was expressly to declare it might be without a recommendation. It is not necessary to decide here whether these sections are still of force. It is held by many that they are, that there is nothing in the new school law to repeal them, either by express words or by implication. It appears, however, that the tax laid in this case is to pay a debt incurred before the general common school law was passed. For such a purpose, it is clear to us the act is of force. The teachers have earned their money under this law, and we think they have a right to have it enforced. Indeed, it might well be questioned if it would have been competent for the legislature, as against these teachers, to repeal this law.

4. As we read section 515 of the Code the real difficulty is to put any limit to the power of the county authorities to lay taxes for the payment of debts really due. Its letter would seem to indicate that at least twenty-five per cent, of all accumulated debts must be paid every year, without any limitation as to the per cent, on the state tax it may take to do this. Rut in view of long established practice and usage of the legislature to limit the taxing power of the counties, even with the assent of the grand jury, we are of the opinion that the limitation of one hundred per cent, in this section (515,) is a limit on the grand jury itself. That fifty per cent, may be laid, as provided in section 511, and with the recommendation of the grand jury, it is competent, for the purposes of section 515, to go as high as one-hundred per cent.

5. The constitution of 1868 expressly authorizes the legislature to provide for the creation of county commissioners in such counties as may require them, and to define their duties. There is no limit on this power. Nor does the constitution point out how these officers shall be chosen. It leaves the whole matter to the discretion of the legislature. In other words, the people have not seen fit to restrict themselves as to the mode of the choice of such officers. Under article 3, section 3, paragraph 1, the legislature has, in terms, the power to make all laws consistent with this constitution. We think it -would be a stretch of the judicial functions to attempt to control the legislature in this matter. The most that can be said is that the selection of such officers by the grand jury is against the genius of the government, which is, in all its essential features, democratic. But this is a very loose ground to go upon, and does not, in our judgment, authorize us to say that it is not competent for the general assembly to leave the election of these officers to the grand jury. There is nothing in article 9, section 1, of the constitution, interfering with this view. That section only- refers to sheriffs, clerks, etc., and to such county officers as then existed by law.

6. As this is a legal office, and, under the forms of law, the officers were in the exercise of their duties, we do not think it is competent to attack their acts on the ground of the illegality or informality of their election. They were officers de facto, and their acts as such are not void : Code, sec. 129; 44 Georgia, 454.

Judgment reversed.