Wadley Southern Railway Co. v. Wright , 31 Ga. App. 289 ( 1923 )

Bloodworti-i, J.

On January 20, 1922, the comptroller-general of Georgia issued a tax fi. fa. against the Wadley Southern Railway Company, which was levied on an engine of the company. An affidavit of illegality was filed by the defendant, attacking certain items named in the order levying the tax. An examination of the record discloses the fact that the ordinary of Treutlen county, sitting for county purposes, on August 22, 1921, passed an order as follows: “It is ordered that an ad valorem tax levy of twenty-five mills, or twenty-five dollars on the thousand dollars assessed tax values for said county, be levied for county purposes for the year 1922, as itemized below. [Then follow the several items.] The tax-collector of Treutlen county is hereby ordered to collect the same, beginning October 1, 1921.” The issues raised by the affidavit of illegality were submitted by consent and under an agreed statement of facts to Hon. D. A. R. Crum, judge of the Cordele circuit, who sustained the illegality in part and overruled it in part. From the view we take of this case, it is unnecessary to determine whether or not, under the facts submitted to him, the judge erred in his rulings. In our opinion, an ordinary sitting for county purposes on August 22, 1921, has no .power or authority to order a “tax levy for the year 1922,” and pass such an order as is copied above. It will be noted that while the order provides for a tax levy for the year 1922, it directs the tax-collector “to collect the same, beginning October 1st, 1921.” The whole scheme of county taxation in this State is that each year is a unit, and the taxes which the ordinary is authorized to levy must be for the expenses of the year in which they are levied or for debts past due. Ordinaries, as county officials and sitting for county purposes, can do no act not authorized by statute, and there is no law in this State which provides that an ordinary in one year can levy a tax for the expenses of the county for the succeeding year. See, in this connection, Albany Bottling Co. v. Watson, 103 Ga. 504 (1), 505 (30 S. E. 270). So we must conclude that the foregoing judgment of the court of ordinary is absolutely void, and can be so held by any court “when it becomes material to the interest of the parties to consider it.” Civil Code (1910), § 5964. Lowers v. Kirkpatrick Hdwe. Co., 21 Ga. App. 751 (2) (94 S. E. 1044).

Judgment on main bill of exceptions reversedj cross-bill dismissed.

Broyles, G. J., and Luke, J., concur.