Blalock v. Adams , 154 Ga. 326 ( 1922 )

Fish, C. J.

(after stating the foregoing facts.)

The first attack made on the tax levy is, that item 1, which levies $7.50 on the $1000 of taxable property, “to build a courthouse, bridges, ferries, and other public improvements, according to contract,” is not authorized by law, in that there was no contract in writing and on the minutes of the county commissioners providing for the doing of any. of the things for which this item was- levied. The argument of counsel for the plaintiffs is, that all contracts with the county must be in writing and be spread upon the minutes of the commissioners (Civil Code of 1910, § 386); that contracts for the purposes for which this item was levied must be let to the lowest bidder, at public outcry, after due advertisement as provided by law (§ 387); that this requirement is mandatory (Dyer v. Erwin, 106 Ga. 845, 33 S. E. 63); and that as no such contracts existed, this item of the levy was illegal. This position is untenable. It is not essential to the validity of a tax levy for the purposes specified in this item of the levy, that contracts for effectuating such purposes have been previously made. Gaines v. Dyer, 128 Ga. 585 (6 a) (58 S. E. 175). Plaintiffs further urge that the tax levied in this item, while ostensibly and on its face levied for building a new court-house, was so levied only to make it appear legal, but with the intention on the part of the commissioners of using the funds raised thereby for other and different purposes; thus doing by indirection what could not be accomplished directly and in an open-handed way. There was evidence which authorized the chancellor to reach a different conclusion; and we cannot hold that a different finding was demanded.

It is next insisted that item 2 of this levy, of 70 cents on the $1,000, “to pay sheriffs’, jailors’, and other officers’ fees,” item 3 of the levy, of 30 cents on the $1,000, “to pay the expenses of the county for bailiffs at court,” item 4, of 50 cents on the $1,000, “to pay jurors a per diem compensation,” item 7, of 50 cents on the $1,000, “ to pay the expenses of casual deficiency,” and item 8, of $1 on the $1,000,- aggregate $3 on the $1,000 of taxable property, and exceed 50 per cent, of the State tax; for which reason, the plaintiffs assert, the levy -is illegal and void. It is true these county commissioners cannot raise a tax for county purposes, over and above the taxes authorized in §§ 504, 506, and 507 of the Civil Code of 1910, which shall exceed fifty per cent, of the State tax (§ 508). The flaw'in the position of the plaintiffs is that they include in their calculation item 8 of the levy, to pay other legal indebtedness of the county. This item should have been excluded. The proper county authorities can legally levy a tax not exceeding 100 per cent, of the State tax, to pay accumulated debts and current expenses, without a recommendation of the grand jury. Civil Code (1910), § 507; Sheffield v. Chancy, 138 Ga. 677, 686 (75 S. E. 1112); Wright v. So. Ry. Co., 146 Ga. 581 (5) (91 S. E. 681). Excluding this item, the remainder of the levy did not exceed 50 per cent, of the State tax. So we reach the conclusion that the trial judge did not err in refusing the injunction on this ground.

'Item 8 of the levy is assailed upon the ground that any debts for the payment of which this item was levied were void because they were contracted in violation of art. 7, see. 7, par. 1, of the constitution of this State, which prohibits the creation of debts by the county without the approval of a popular vote; and that the county commissioners were without authority of law to levy a tax to pay such void indebtedness. All presumptions must be indulged in favor of the legality and validity of the tax. Wright v. So. Ry. Co., supra. So the burden was on the plaintiffs to make good this contention.

Counsel for the plaintiffs relies upon the decision in Garrison v. Perkins, 137 Ga. 744 (74 S. E. 541), to support this contention. In that case this court held, that the county authorities could not to build bridges of the character referred to in section 387 of the Code of 1910, except by letting out the contracts therefor at public outcry; and that debts contracted in the purchase of materials for the construction of bridges of that character were not valid charges against the county. That decision was good law at that date; but the ruling therein-made has been changed by a subsequent statute. By the act of August 17, 1920 (Ga. Laws 1920, p. 58), it is enacted “that in any county having a chain-gang the county commissioners of such county, or other persons having charge of such works, shall have the power and authority to purchase material for and use the convicts in building or repairing any public bridge, causeway, or other public works in said county; and in such, cases the three preceding sections, paragraphs 386, 387, and 388, shall not apply.” Since the passage of this act the county commissioners can buy material, and build or repair public bridges with chain-gang convicts, without letting the contract for their construction at public outcry. This tax levy was made on September 7, 1920, shortly after the passage of this act; but the act took effect when approved by the Governor. Epstin v. Lavenson, 79 Ga. 718 (2) (4 S. E. 328). As the burden was on the plaintiffs to show the illegality of this item of the levy, it was incumbent upon them to show that these debts were contracted for the erection of bridges of the character of those referred to in section 387 of the Civil Code, and that they were made prior to the passage of the act of 1920. The plaintiffs failing to carry this burden, the judge did not err in refusing to enjoin this item of the tax levy.

Counsel for plaintiffs in his brief urges, that item 7, levying a tax of five cents on the $100 of taxable property of the county, “to pay expenses of casual deficiency existing in the county,” is illegal, because there was no such casual deficiency in the county revenue as would authorize such item of the levy. As no attack was made on this item on this ground by the plaintiffs in their petition, we are not called upon to decide the question

thus raised. Judgment affirmed'.

All the Justices concur.