McMillan v. Tucker

Fish, C. J.

(After stating the foregoing facts.)

The first objection to the validity of the county taxes assessed for the year 1921 is that it was levied “for the purpose of raising funds to meet the public expenses of said county for the fiscal years 1921-22.” It is urged that the levy was illegal, because it was levied for the fiscal year other than that beginning January 1st _and ending December 31st of the year 1921. This ground of attack was removed by an appropriate amendment to the tax levy under which the tax was levied, so that the levy would show that it was made to meet the expenses of the county for the year 1921.

The second objection to the validity of this tax levy is that each item of the tax so levied does not specify the per cent, of the State tax levied for each of the specific purposes named. Counsel for plaintiffs in error rely on the cases of Mitchell v. Speer, 39 Ga. 56, Albany Bottling Co. v. Watson, 103 Ga. 503 (30 S. E. 270), Sullivan v. Yow, 125 Ga. 326 (54 S. E. 173), and Butts County v. Jackson Banking Co., 136 Ga. 719 (71 S. E. 1065). None of these cases sustain the position of counsel for plaintiffs. These cases simply hold that the tax levy for the specific purposes mentioned in the Civil Code (1910), § 513, shall not be levied in gross sums, but that the per cent, levied for each of these purposes shall be specified in the order. The case of Albany Bottling Co. v. Watson, just cited, did not involve a tax on property, but only a business tax. An assessment which gives the cents levied upon each one hundred dollars of property for each of these purposes is a substantial compliance with this provision of the code.

It is next objected that under the undisputed facts of this ease the levies specified in each of the items, 1, 2, 3, 4, 5, 8, and 9 of the assessment were grossly excessive. We do not find that this attack is well founded. What is said in the 3rd headnote on this subject does not need elaboration.

The proper county authorities have power to raise a tax for county purposes, over and above the tax provided in §§ 504, 506, and 507 of the Civil Code, not to exceed fifty per cent, 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. Civil Code, § 508. If such grand jury is not impaneled, or they adjourn without taking action, or they refuse to make such recommendation, and it is necessary to levy such tax to meet county expenses, the county authorities can levy the necessary tax without such recommendation. Civil Code, § 510; Sheffield v. Chancy, 138 Ga. 677, 682 (75 S. E. 1112). The total of items 2, 3, 4, 5, and 8 of the original levy of September 5, 1921, amounted to 3.6 mills, and exceeded the limit of fifty per cent, upon the amount of the State tax levied for that year. The levy for these items, as originally made, exceeded in amount the power of the county authorities in this matter. By amendment two of these items were cut down and the 8th item eliminated, so that they did not exceed the power of the county commissioner in this matter. As reduced by the amendment of January 2, 1922, they did not exceed the amount which the commissioner could levy for county purposes. They then became legal and proper. The trial judge did not err in refusing an injunction restraining the collection of these items, as item 8 was eliminated, and two of the others were reduced, so that the result followed that items 2, 3, 4, and 5 did not exceed the limit.

The ruling announced in the fifth headnote requires no elaboration.

This brings us to consider the tax levied for educational purposes. Under the constitutional provision upon the subject of establishing and maintaining public schools by local taxation, which was in existence prior to the adoption of the constitutional amendment of 1920, Irwin County in 1907, by popular vote, authorized a tax of five mills for the support of the public schools within its limits. At that time it required two thirds of those voting at an election held for -that purpose, to establish and maintain public schools in a county by local taxation. Article 8, section 4, paragraph 1, of the constitution of 1877 (Civil Code, § 6579). Under the amendment of 1920 the board of education of Irwin County recommended that the commissioner of that county levy the tax of five mills, which had been authorized by popular vote, and in addition a levy of two and a half mills; and in pursuance of this recommendation a levy of seven and one half mills was made by the commissioner, to maintain the public schools of that county. The plaintiffs attack this levy upon the ground that it was illegal and void on the ground that it was levied without authority of law. Whether this item is legal or not depends upon the proper construction of the constitutional amendment of 1920. This amendment is as follows: “Authority is granted to the counties and municipal corporations, upon the recommendation of the corporate authority, to establish and maintain public schools in their respective limits by local taxation. The proper count}'' authorities whose duty it is to levy taxes for county purposes in this State shall, on the recommendation of the board of education, assess and collect taxes for the support of public schools under its control, not less than one nor more than five mills on the dollar of all taxable property of the county, outside of independent local systems, which shall be distributed equitably according to the school population, tax values, the number of teachers and their grade of license, among the public schools therein. An additional levy to that already allowed, not to exceed five mills, shall be permissible in independent local systems, municipalities, or school districts on a two-thirds vote of those voting. No additional election shall be required to maintain any local school tax now in existence in districts, counties, or municipalities; provided this bill shall not apply to counties having a local school system of taxation adopted prior to the Constitution of 1877.” This amendment to the constitution embraces these propositions: (1) Authority is granted to the counties and municipal corporations, upon the recommendation of the corporate authority, to establish and maintain public schools in their respective limits, by local taxation. (2) This purpose is now accomplished, so far as counties are concerned, by recommendation of the county board of education alone. (3) An additional levy to that already allowed, not to exceed five mills, shall be permissible in independent local systems, municipalities, or school districts, on a two-thirds vote of those voting. (4) This amendment does not apply to counties having local systems of taxation adopted prior to the constitution of 1877. (5) No additional election shall be required to maintain any local tax in existence in districts, counties, or municipalities at the date of the adoption of said amendment; and such tax shall continue and be levied until changed by the county boards of education within the limits prescribed in this amendment.

Where by popular vote, under the provisions of the constitution of this State in force prior to the adoption of this amendment, public schools had been established and maintained by local taxation in counties, such systems are preserved by the amendment, and no additional election is required to maintain the school tax levied by popular vote. In such cases the boards of education are without authority to change the tax fixed and established by popular vote, except within the limits of this amendment. Systems already established are preserved and perpetuated. Taxes already fixed by popular vote are to continue until changed as above, with the exception that an additional tax not to exceed five mills is permissible in independent local systems, municipalities, or school districts. This amendment has no application to counties having a local school system of taxation adopted prior to the constitution of 1877. Irwin County having, by popular vote in 1907, established and maintained public schools within its limits by local taxation, that system is preserved by this amendment, including the tax rate fixed by such popular vote; and such rate will continue- until changed by the county board of education within the limits of taxation named in that amendment. Such board cannot fix a rate above the maximum or below the minimum rate specified in this amendment. So the levy of two and one half mills in addition to the rate fixed by the popular vote in Irwin County was without authority of law, and the same should have been enjoined.

' The seventh headnote does not require any elaboration.

The provision of the Civil Code (1910), § 515, for advertising the order levying county taxes “is directory and not mandatory, and a failure to comply with such provision will not render the tax levy and assessment void.” McGregor v. Hogan, 153 Ga. 473 (112 S. E. 471).

The levy of a tax for the purpose of tick eradication is attacked on the grounds, (1) that there is no law which authorizes such a levy for this purpose; and (3) that the amount of this levy, added to other items of the levy, exceeds fifty per cent, of the State tax. A tax can be legally levied for the purpose of paying the expenses of tick eradication. Townsend v. Smith, 144 Ga. 794 (87 S. E. 1039); Avera v. Clyatt, 152 Ga. 280 (109 S. E. 655).

But such tax is one for a county purpose. It was not embraced in the original levy; but added by an amendment. As the tax for tick eradication and items 3, 3, 4, and 5 exceeded the limit of fifty per cent, of the State tax levied for 1931, it was illegal; and the trial judge should have enjoined item 8, in the absence of any amendment reducing this item so as to bring the total of items 2, 3, 4, 5, and 8 within fifty per cent, of the State tax.

The court erred in not enjoining the levy to pay the legal indebtedness of the county due or to become due, item 7 (the school tax), and item 8 (the tax to pay expenses of tick eradication) ; and its judgment is reversed in these particulars, but is affirmed in refusing to enjoin the'other items of the levy.

Judgment reversed in part, and affirmed in part.

All the Justices concur, except Gilbert, J., absent.