Sheffield v. Chancy , 138 Ga. 677 ( 1912 )

Beck, J.

(After stating the facts.) The important and controlling question involved in this case is, whether the levying of a tax to pay accumulated debts is one of those included in the provision for recommendation by the grand jury, or whether the ordinary or county commissioners can levy it without regard to any recommendation of the grand jury. This question involves the determination of whether § 507 of the Civil Code of 1910 is to be construed in connection with and as affected by §§ 508 and 510. Without going back of the Code of 1863 to determine the origin of the legislation involving these sections, their status and history from that time may be considered with a view to reaching a proper construction of them.

In the original code the levy of taxes for certain specified purposes, such as the erection of court-houses, jails, etc., was authorized without recommendation of the grand jury. By § 481 of that code it was declared: “Justices of the inferior court have power to raise a tax for county purposes, over and above the tax they are hereinbefore empowered to levy, and not to exceed fifty per cent, upon the amount of the State tax for the year it is levied, provided two-thirds of the grand jury at the first or spring term of their respective counties recommend such tax.” By § 483 it was declared: “If from any cause such grand jury is not empaneled, or they adjourn without taking any action thereon, or they refuse to make such recommendation sufficient to discharge any judgment that may have been obtained against the county, or any debt for the payment whereof there is a mandamus, or the necessary current expenses of the year, such justices may levy the necessary tax without such recommendation.” By § 485 provision was made for a creditor to compel a tax to be levied or for a taxpayer to resist it. Section 486 stated the purposes for which county taxes should be assessed: One of them was: “To pay the legal indebtedness of the county, due or to become due during the year, or past due.” After this followed the section upon which the present controversy mainly rests. It reads as follows: “When debts have accumulated against the county so that one hundred per cent, on the State tax, or the amount specially allowed by local law, can not pay the' current expenses of the county and the debt in one year, they shall be paid off as rapidly as possible, at least twenty-five per cent, every year.”

It will be seen at a glance that these sections are far from clear, and are 'difficult if not impossible to reconcile with each other in all respects. The authority to levy a tax of fifty per cent., upon recommendation of the grand jury, over and above the special tax already authorized, is followed by a provision in case they fail or refuse to make the recommendation, which mentions the payment of any debts in judgment or for which there is a mandamus, as well as current expenses of the year. This apparently contemplates primarily a recommendation of the grand jury to levy a tax to pay such debts, and the action of the justices of the inferior court only in the event they fail to make recommendation. Here, also, only a particular class of debts is mentioned. On the face of it, the second section above quoted contains no express limitation as to arqount. But this court held that the two should be construed together, and that the authority of the justices, or their successors, the ordinary or county commissioners, to levy without recommendation was not more extensive than the power to levy with a recommendation. Waller v. Perkins, 52 Ga. 234. The next section, in stating the purposes for which county taxes may be levied, refers to the “legal indebtedness of the county,” and does not confine it to a debt which may have been reduced to judgment or in regard to which a mandamus may have been obtained. Then follows the provision already quoted, which no longer adheres to the fifty per cent, limitation, but provides that if debts have accumulated against the county so that “one hundred per cent, of the State tax” can not pay the current expenses and the debts in one year, they shall be paid off as rapidly as possible, at least twenty-five per cent, each year.

The inferior court having been abolished, in later codes the ordinary or county commissioners took their place in regard to county taxation. These provisions were contained in the Code of 1868 and in those of 1873 and 1882 in the same order in which they occurred in the Code of 1863. In 1881 the legislature passed an act providing for cases where the spring term of the court might adjourn before the grand jury had made their general presentments. In the Code of 1882 this act was incorporated as a part of the section already existing for cases where a grand jury was not empaneled or failed to act. Thus at the close of that section appears the proviso: “such tax shall not exceed the levy last recommended by a grand jury for such county.” In this form it was incorporated into the Code of 1895, and again in that of 1910, and each time was adopted toy the legislature. As, however, the limitation upon the power of a previous grand jury was the same as that upon the grand jury for that term, this did not materially affect such limitation, as already construed by this court.

In Arnett v. Griffin, 60 Ga. 349, a county tax of 199 1/3 per cent, upon the State tax was levied and resisted. This court upheld the levy. In doing so it determined what items could be levied without recommendation of the grand jury, and that their aggregate was more than ninety-nine and one third per cent., thus leaving approximately one hundred per cent, over and above such special items. Eeferring to the decision in 52 Ga., supra, Jackson, Judge, said that it was there held that the ordinary could levy a tax for county buildings without recommendation of the grand jury; that besides this he could levy to pay judgments, etc., not exceeding fifty per cent.; and that as to accumulated debts, where fifty per cent, would not pay them, the grand jury may go to the extent of one hundred per cent, to pay them, and in such eases creditors have the right to twenty-five per cent, of this sum if there be not enough to pay the current expenses and the debt. It was accordingly held, that, the grand jury having recommended one hundred per cent., and the special items which could be levied without recommendation covering ninety-nine and one third per cent., the whole levy was legal. This recognized the fact that a levy to pay indebtedness fell within the purview of the grand jury to recommend, subject to the right and duty to make the levy if they failed or refused to act. The same rule is recognized in the case of Sullivan v. Yow, 125 Ga. 326 (54 S. E. 173). In that case, fifty per cent, was mentioned as the limit, bnt no accumulated debts were there involved, so that the one hundred per cent, limit would apply.

The codifiers of the Code of 1895 took the section with reference to accumulated debts from the position which it had occupied since the adoption of the Code of 1863, and placed it along with sections touching special and extra taxes, in advance of the section authorizing the ordinaries to raise a tax for county purposes, “over and above the tax they are hereinbefore empowered to levy, not exceeding fifty per cent, upon the amount of the State tax for the year it is levied,” upon recommendation of the grand jury; and in that position it was adopted in the Code of 1895 and that of 1910. Perhaps the reason for the transposition arose from the radical change made by the constitution of 1877 in regard to the incurring of indebtedness by counties and municipalities. Prior to that time debts had been incurred with great freedom, and sometimes unwisely 'and disastrously. The constitutional convention determined to put a check upon extravagance or the incurring of indebtedness by such political bodies. They therefore provided that no county ox municipal corporation should incur any new debt .except for a temporary loan to supply casual deficiencies of revenue, not to exceed one fifth of one per cent, of the assessed value of the property therein, without the assent of two thirds of the qualified voters thereof at an election for that purpose. It was also declared that at or before incurring any bonded indebtedness the county or municipality should provide for the assessment and collection of an annual tax, sufficient in amount to pay the principal and interest of said debt within thirty years from the date of the incurring of said indebtedness. Civil Code (1910), § 6564. As the constitution thus required a permanent provision for the collection of a tax to pay bonded indebtedness, as to such indebtedness it superseded and rendered unnecessa^ any recommendation of a grand jury in regard to it. As to indebtedness other than bonded indebtedness, this was also prohibited, except upon an election, and excepting a loan to meet casual deficiencies. It being thus provided that debts could not be incurred merely at the will of the ordinary or commissioners, but required the sanction of a popular vote, it is probable that the codifiers therefore thought that a complete change had been made in the status of debts which could be legally incurred by the county, and that they thereafter occupied a fixed position. By § 440 et seq. of the Code of 1910 provision is made in regard to election for the purpose of incurring bonded indebtedness. In the notice to be given it must be specified what amount of bonds are to be issued, for what purpose, what interest they are to bear, and how much principal and interest is to be paid annually, and when the bonds are to be paid off. By the act of 1904 (Civil Code 1910, § 463 et seq.) a similar provision is-made in regard to incurring indebtedness other than bonded indebtedness; and in this it is also declared that the notice shall specify the amount of the debt to be incurred, for what purpose, what ¿mount of the debt is to be paid annually or at stated periods, and the terms of the contract under which the debt is to be incurred.

Thus by the constitution counties are prohibited from incurring any indebtedness except in the manner therein pointed out, and they are required to make provision in advance in regard to the payment by taxation of bonded indebtedness. And by the acts of the legislature similar provision as to specifying the times of payment of debts other than bonded indebtedness is required. This works so radical a change in the old system of creating debts, that ,it would be useless to say that the county was bound to provide in advance how and when the debt should be paid and the people should ratify that declaration, and yet the payment should dépend upon a recommendation of a grand jury. And, as said in the case of Sullivan v. Yow, supra, there were no áccumulated debts, and what was said in that ease had no application to the section of the code now under consideration. We are of the opinion, therefore, that under the present status of the law,, if there is a legal indebtedness of a county incurred in a manner authorized by law, it is contemplated that it shall be paid in the manner previously fixed, and that the tax levy of the difference between the current expenses and one hundred per cent, upon the State tax can be made without recommendation of the grand jury. This is reinforced by the requirement that at least twenty-five per cent, shall be paid in each year, and the fact that the creditor may bring mandamus to compel the levy of the tax and any taxpayer may contest the proceeding. With a legal indebtedness and the terms of payment fixed upon a county in a manner prescribed by the constitution, with the right in the creditor to proceed by mandamus to compel the levy of a tax for the purpose of its payment, with a provision for the levy of the difference between the amount of the current expenses and the amount of the State tax, and a requirement for the payment of at least twenty-five‘per cent, per annum, the recommendation of the grand jury could neither prevent nor assist in the carrying out of the law in this regard, and it would be more ornamental than substantial. If the indebtedness is a contractual one and is legal under the constitution and law, it requires no recommendation of the grand jury to levy a tax for the difference between current expenses and one hundred per cent, on the State tax to pay it. We are dealing here with the question of contractual debts, and not with liabilities arising from the breach of a contract, or the like. No question of such liability is raised in this case, or as to taxation to pay it, and it is unnecessary now to discuss their status. If a debt is legal and legally incurred, and is not paid at the time when it falls due, it remains a legal debt and ranks as an accumulated debt.

It is evident that the presiding judge placed a different construction upon § 507 of the Civil Code from that above indicated as the proper one. It is clear that the amount necessary to pay the bonded indebtedness falling due (alleged to be $3,250) is a proper item of the tax levy. As to other matters which are claimed to be debts of the county and which are not covered by specific items of the tax levy, such as for the support of paupers, maintenance of public buildings, etc., it does not appear with sufficient clearness whether they are in fact legal debts of the county, so that this court may give direction in regard -to them. We deem it best to reverse the judgment and remand the case to the court below, with direction that he rehear it and determine what part of the tax which it is proposed to levy and collect under item 1 of the tax levy may properly be enforced and what can not.

Judgment reversed, with direction.

All the Justices concur.