Augusta Factory v. City Council of Augusta

Bleckley, Chief Justice.

The code, §3220, declares that the granting and con•tinuing of injunctions must always rest in the sound discretion of the judge, according to the circumstances of each case. The judge having refused an injunction in the present case, the sole question for our determination is, whether in doing so he failed to exercise a sound discretion according to the circumstances. It was insisted on the argument that, by the element of contract, the ease was taken out of the general rule. The contract referred to was a covenant on the part of the city made in July, 1858, with the then owner of the property now taxed, or some of it, not to exercise the taxing power with reference to this property in a way to burden it more than other property of a like kind in the city. If the covenant is to be regarded as an attempt to limit or modify tbe taxing power of tbe municipality, we think that in the absence of express legislative authority to enter into it, the city had no power to make such a covenant. Whilst according to the decisions of the Supreme Court of the United States, the State itself could surrender or limit the taxing power in 1858, as to any specific property, we think it has never been held that a municipal corporation could exercise a like power of contracting in the absence of statutory permission. Even the granting of exemptions from taxation by merely forbearing to exercise the taxing power as to some property, in ordinances imposing taxes on other property, is matter of doubtful validity. Cooley Tax. 200; Desty Tax. 466.

Such ordinances were, however, allowable in Georgia prior to the constitution of 1877. Mayor of Athens v. Long, 54 Ga. 330; Waring v. Mayor of Savannah, 60 Ga. 93. But we apprehend it never was within the power of a city to bind itself by contract either to forbear to impose taxes, or to impose them under certain given limitations, or on certain conditions. In other words, we think a municipal government could not hedge in its legislative power by contract. State v. Hannibal, etc. R., 75 Mo. 208; Mack v. Jones, 21 N. H. 393.

It was conceded in the argument that neither by the charter of Augusta, nor by any of the amendments thereto, has any express power ever been conferred on that city to limit or regulate its taxing power by entering into any covenant touching its exercise. In Atlanta Street R. R. v. Atlanta, 66 Ga. 104, the power to exempt was expressly conferred on the city by the charter of the railroad company. See Acts of 1865-6, p. 201.

We have said thus much to eliminate the contract element from the case; though were it to remain in it, we see not how it could or ought to vary the decision proper to be made on the application for an interlocutory injunction, the duty now of the city council being to levy and collect taxes upon the basis prescribed by the constitution of 1877, which is certainly as favorable to the plaintiff as that laid down in the alleged covenant. "Where legal duties and rights coincide precisely with the stipulations of a contract, and the proceeding involves the enforcement of such legal rights and duties, the contract stipulations become wholly imma-terial. In any view of the subject, therefore, the case before us is one depending on the ordinary rules of interlocutory injunctions against the collection of city taxes due for past years. As there is no attack upon the validity of the ordinance imposing the taxes, but complaint is made only of the non-enforcement of the ordinance against other property alleged to be subject to taxation under it, and as there has been no tender of any part of the unpaid tax assessed upon the property of the plaintiff, we are unable to perceive any abuse of discretion by the judge in denying the injunction.

Judgment affirmed.