Mayor of Macon v. Jones , 67 Ga. 489 ( 1881 )

Jackson, Chief Justice.

Pretermitting the question whether a municipality can tax its own bonds, which has not been decided by the supreme court of the United States on the naked issue that it impairs the obligation of the contract (96 U. S. R., p. 432), we are of the opinion that this case is virtually controlled by the ruling of this court in the case of Miller vs. Wilson, tax-collector, et al., 60 Ga., 505. In that case it was held that the words “ taxable property of the state,” did not embrace the bonds of the state in an act levying a tax on the people of the state ; because it was a grave question of public policy whether the state ought to tax her own promises to pay. Is it not equally so, whether a subordinate branch of government ought to tax its promises to pay; and if the words “ taxable property ” in the state’s own tax act will not embrace its bonds, will similar words in a charter it grants to a municipality to exercise the great power of taxation, enable that municipality to tax its bonds? The words in the Macon charter are “ to tax all property, real and personal, within the corporate limits of the city.” These words are not broader than “ all taxable property,” and cannot open a wider field for "the exercise of power.

In the City Council of Augusta vs. Dunbar, 50 Ga., 387, it is held that without express authority and explicit language, it will not be presumed that the state under general words granted Augusta the power to tax state bonds, because the state would hardly do right to tax her own bonds, and hence would not grant another the power to do what it would not be right to do herself. The authority must be explicit, it is there held, to authorize the city to do in respect to state bonds what the state ought not to do. If so, is it not equally clear that the state should not be presumed to have granted to a municipality power to act in regard to the municipality’s bonds differently .from the manner in which it would be wrong for itseLf. to act in regard to its, the state’s, bonds ? If the state thought it wrong to tax debts she owed, would she authorize another to tax the debts it owed ? Would she not require her subordinates to stand on the same plane of morality she placed herself upon? We think so.

Therefore words equivalent to those she used in her tax; act, construed in 60 Ga., 505, not to authorize a tax on her bonds, will not be construed to authorize a tax on bonds-of the city of Macon, when used in the grant to that city to tax property therein.

Moreover, in the case in 96 U. S. supra, it is held that, the. payment of the debt or interest must be made before the power to tax can be exercised. The record in this-case shows that neither the one nor the other has been done..

Further, we do not see clearly the fairness of enforcing a tax ordinance of former councils of the city, when those councils did not enforce it themselves, upon one citizen to the exclusion of others, especially, — and more especially when another has been relieved by council from a like imposition. Nor do we see how a debtor can avoid, very well, the imputation of a purpose to impair his contract, when he levies or orders the enforcement of stale taxes due, if at all, for years in the past, in order to constrain his creditor to make another contract, less valuable and at lower rates of interest, and not so well secured as that which the creditor now holds.

In view of all the facts set out in this record, we cannot say that the chancellor, in the exercise of the powers which the great principles of equity place in his hands to protect the weak against the strong, and shield the citizen against the corporate power of the city, erred in the grant of this injunction, and therefore the judgment is affirmed.

Judgment affirmed.