Haugen v. Henry County , 277 Ga. 743 ( 2004 )

Carley, Justice.

In September of 1996, the voters of Henry County passed a referendum authorizing the imposition of a Special Purpose Local Option Sales Tax (SPLOST) for a period of five years. The tax was intended to raise not more than $60 million for road and street repair, as well as for specified capital projects. During the five-year period, the tax generated more than $71.8 million in revenue. Although $60 million was spent for the stated purposes, certain of the projects remained incomplete. When the County proposed to expend the additional SPLOST funds on the unfinished projects, James L. Haugen, who is a resident and taxpayer of the County, instituted an action seeking mandamus and injunctive relief. He alleged that, pursuant to OCGA § 48-8-121 (g) (1) (B) and (g) (2), any “excess proceeds” must be used to reduce ad valorem taxes.

The County moved to dismiss and the trial court granted the motion on procedural and on substantive grounds. It found that Haugen had failed to comply with OCGA § 9-6-27 (a), because no mandamus nisi was granted and served on the County. It also concluded that there were no “excess proceeds” as defined by OCGA § 48-8-121 (g) (1) (B) and (g) (2). Haugen appeals from the order of the trial court dismissing all claims against the County.

1. Under OCGA § 9-11-4 (k), “ordinary process” may be used in a mandamus action as an alternative method of service to that authorized by OCGA § 9-6-27 (a). DeKalb County v. Chapel Hill, 232 Ga. 238, 239 (1) (205 SE2d 864) (1974). Thus, Haugen’s failure to comply with OCGA § 9-6-27 (a) is immaterial, because he served the County in the ordinary manner. The County’s reliance on OCGA § 9-11-81 is misplaced, since OCGA § 9-6-27 (a) complements, rather than conflicts with OCGA § 9-11-4 (k), which expressly establishes that

[t]he methods of service provided in this Code section may be used as alternative methods of service ... in any other special statutory proceedings . . . and, in any such proceeding, service shall be sufficient when made in accordance with the statutes relating particularly to the proceeding or in accordance with this Code section.

See In the Matter of: Inquiry Concerning a Judge, 265 Ga. 326, 329 (2) (454 SE2d 780) (1995) (using OCGA § 9-6-27 as the alternative to OCGA § 9-11-4). Accordingly, the trial court erred in dismissing the action on procedural grounds.

2. The tax was in effect for the full five-year period. See Jackson v. Shadix, 272 Ga. 631, 632 (1) (533 SE2d 706) (2000) (construing former OCGA § 48-8-112, which is controlling here as well). However, Shadix did not concern and, thus, is not dispositive of, the substantive issue of statutory construction that is presented here. Under OCGA § 48-8-121 (g) (1) (B), the taxing authority receives excess net SPLOST proceeds to the extent that the revenue obtained is “in excess of the maximum cost of the project or projects stated in the resolution ... or in excess of the actual cost of such project or projects . . . .” OCGA § 48-8-121 (g) (2) provides, in relevant part, that the County can use such excess proceeds only to reduce its ad valorem taxes. The maximum cost of the projects stated in the SPLOST resolution was $60 million, but the actual cost of the projects exceeds that amount. Accordingly, the issue to be decided is whether the County is entitled to use the $11.8 million plus accrued interest to complete the projects before it can be charged with possessing any “excess” SPLOST proceeds.

“The natural meaning of ‘or,’ where used as a connective, is “ ‘to mark an alternative and present choice, implying an election to do one of two things ....’” [Cit.]” Gearinger v. Lee, 266 Ga. 167,169 (2) (465 SE2d 440) (1996). Thus, OCGA § 48-8-121 (g) (1) (B) provides that SPLOST proceeds are considered to be “excess” either when they are greater than the cost of the project specified in the resolution or when they are greater than the actual cost of the project. The determinative factors are the estimated and the actual costs of the project. However, the statute does not expressly provide which alternative applies where, as here, the net tax proceeds exceed the estimated, but not the actual, cost of the project. The dissent simply assumes that, because the General Assembly used the word “or” to separate the two alternatives, whichever cost is the lesser would control, with the result that the estimated cost establishes the maximum amount of SPLOST revenue that can be expended on the project. As soon as the tax proceeds reach an amount equal to the estimated cost, all additional proceeds are deemed excess. Thus, according to that interpretation, once the County raised the $60 million specified in the resolution, all further SPLOST revenues were excess even though the projects had not been completed.

There is nothing in the statute to support the conclusion that the estimated cost invariably controls over the actual cost. By using the word “or,” the General Assembly anticipated that, on occasion, actual cost would be the applicable standard for determining “excess proceeds.” The construction of the statute advanced by the dissent leads to the anomalous result that the County cannot use available SPLOST revenues to complete those very projects for which the tax was expressly proposed, approved and imposed. However, one of the cardinal rules of statutory construction requires the courts to “consider the consequences of any proposed interpretation and not construe the statute to reach an unreasonable result unintended by the legislature. [Cit.]” Trust Co. Bank v. Ga. Superior Court Clerks’ Cooperative Auth., 265 Ga. 390 (1) (456 SE2d 571) (1995). “‘“The construction (of statutes) must square with common sense and sound reasoning.”’ [Cit.]” Thornton v. Clarke County School Dish, 270 Ga. 633, 634 (1) (514 SE2d 11) (1999). Moreover, “[language in one part of the statute must be construed in light of the legislature’s intent as found in the whole statute. [Cit.]” Echols v. Thomas, 265 Ga. 474, 475 (458 SE2d 100) (1995). OCGA § 48-8-121 (g) (1) (B) does not exist in isolation. OCGA § 48-8-121 (a) (1) expressly provides that “[t]he proceeds received from the tax authorized by this article shall be used by the county exclusively for the purpose or purposes specified in the resolution or ordinance calling for imposition of the tax.” “Shall,” “exclusively” and “purpose or purposes specified” are all clear and unambiguous terms. Thus, to satisfy the mandatory requirement imposed by OCGA § 48-8-121 (a) (1), the taxing authority must necessarily use all SPLOST proceeds to complete the projects for which

* the tax was imposed, before any revenue derived from the tax can be deemed to be “excess” and available for use in connection with another purpose. The County

is bound ... to complete all projects . . . unless circumstances arise which dictate that projects which initially seemed feasible are no longer so. In this regard the governing authority has discretion to make adjustments in the plans for these projects, but may not abandon the projects altogether.

Dickey v. Storey, 262 Ga. 452, 456 (3) (423 SE2d 650) (1992). Therefore, as a matter of law, there can be no “excess” SPLOST proceeds so long as revenue is available and the projects specified in the resolution imposing the tax have not been completed.

Accordingly, the only construction of OCGA § 48-8-121 (g) (1) (B) which comports with sound reasoning and the entirety of the statute of which it is a part is that the actual cost, rather than estimated cost, establishes the maximum amount of SPLOST revenue that can be expended. While estimated “or” actual cost are the applicable standards for determining “excess proceeds,” on those occasions when actual cost exceeds estimated cost, actual cost is the determinative standard. Thus, even though the tax proceeds received by the taxing authority may exceed the estimated cost of any given unfinished project, no “excess” proceeds exist so long as the project remains incomplete. To hold otherwise would render OCGA § 48-8-121 (a) (1) meaningless and sanction the unnecessary abandonment of projects based upon a good-faith, but incorrect estimate as to the effect of inflation or other variables on the actual cost to complete them.

The judiciary has the duty to reject a construction of a statute which will result in unreasonable consequences or absurd results not contemplated by the legislature. General Electric Credit Corp. of Ga. v. Brooks, 242 Ga. 109, 112 (249 SE2d 596) (1978). The General Assembly did not intend that a taxing authority be precluded from expending available SPLOST proceeds on unfinished projects simply because the original estimate of the cost of completion was too low. The trial court correctly interpreted the relevant statutory provisions and, therefore, properly dismissed Haugen’s petition on substantive grounds.

Judgment affirmed.

All the Justices concur, except Sears, P. J., Thompson and Hines, JJ, who dissent.