Jones v. Darby , 174 Ga. 71 ( 1931 )

ON MOTION FOR REHEARING.

Hines, J.

The defendant in error makes a motion for a rehearing on the ground that this court overlooked the fact that there was absolutely no evidence in the record in this case to show that the 1929 taxes due by respondent to the City of Yidalia were due as much as six months prior to his election to the office of county commissioner. The bill of exceptions in this case recites that it is conceded by counsel for both sides that the sole question to be determined by the trial court was whether or not failure to pay municipal taxes to the City of'Yidalia more than six months next preceding the general election at which respondent was elected rendered him ineligible to hold the office. Clearly this stipulation makes it absolutely certain that the taxes due by respondent to the city were due and payable more than six months preceding the general election at which he was elected. This position is fortified by the fact that in the brief filed by counsel for the respondent no such question was raised or discussed when this case was submitted to this court. Besides this stipulation and concession, it abundantly appears from the facts appearing in this record that the city taxes were due and payable more than six month's prior to the election at which respondent was elected to the office of county commissioner. The taxes were for the year 1929. The election took place in November, 1930. By the 63rd section of the charter of Yidalia the mayor and council thereof are granted “power and authority to levy and collect a tax annually, of not exceeding one and one half per cent., upon all and every species of property, both real and personal, within the limits of the City of Yidalia, including bonds, notes, debts, choses in action, moneys employed in banking and otherwise, and to enforce the collection of same by execution, levy and sale as the mayor and council shall provide.” Acts 1922', pp. 1004, 1044. So the tax which this city was authorized to levy and collect in 1929 had to be collected'annually; and it is to be presumed, in the absence of anything to the contrary appearing in the record, that the mayor and council of the city had provided the time at which such tax became due and collectible. Furthermore, the contention that a tax levied for 1929 was not to be collected until the succeeding year would amount to an absurdity. So under the facts appearing in this record the city taxes of the respondent were due and payable ten months or more prior to the election at which h'e was chosen county commissioner. Instead of this court overlooking this fact in the record, counsel for the respondent themselves have overlooked this important fact in the record. The motion for rehearing is denied.