Verdery v. Village of Summerville , 82 Ga. 138 ( 1888 )

Bleckley, Chief Justice.

Verdery sought to enjoin the collection of a small tax ji. fa., issued against him by the municipality of Summerville for alleged taxes on his real estate situate in the village, for the year Í887. The injunction was denied. Annexed to the bill or petition for injunction is a copy of the ordinance imposing the tax. It levies a tax of one 'quarter of one per cent, upon the assessed value of all real estate in the village. No tax, by that ordinance or any other, was laid on personal property or its value.

1. Is an ordinance which taxes real estate alone constitutional? Possibly, under the constitution of 1868, taxable property'could be classified by species, and each species taxed at a different rate from that imposed on another species. There are, if not direct decisions, some intimations to that effect. Waring vs. Savannah, 60 Ga. 93, and the cases there cited. But that constitution was altogether different from its successor of 1877 in the clause which prescribes the rule of taxation. Let the two clauses be compared. The former reads thus : “ Taxation on property shall be ad valorem only, and uniform on all species of property taxed.” This language could,.by straining it, perhaps be construed to require uniformity, not between species and species, but only amongst the various individual pieces or groups of property belonging to one and the same species. The clause now of force is in these words: “ All taxation shall be uniform upon the same class of subjects, and ad valorem on all property subject to be taxed within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws.” Here property subject to be taxed, the whole of it together, and not as cut or divided into species, is treated as one subject-matter of taxation; and this immediately follows the declaration that all taxes shall be uniform upon the same class of subjects. Property subject to be taxed is treated as one single class, and the only division of it contemplated or allowable is by territorial lines, coinciding with the territorial’ limits of the various authorities by which the taxes upon it are levied. There cannot be this rate on one species of property and that on another, though there can be different rates for different cities or villages on all taxable property whatsoever. Uniformity is not required between city and city, etc. when the levy is for municipal taxes; but it is required between every man’s property and every other man’s property in the same city or village.

Another important difference between the two constitutions tends to show that property subject to be taxed is all to be taxed alike, when any of it is taxed. That difference is, that the older constitution did not limit or prohibit exemptions, but the younger does. It specifies certain property that may be exempted, and then declares that laws exempting any other shall be void. Thus, the only classification of property, relatively to taxation, that is made or authorized, is into exempt property and property subject to be taxed; and taxation on all property subject to be taxed is required to be ad valorem, — that is, according to value.

Once for all, the constitution has enumerated the two classes of property, which enumeration the legislature, the courts and the citizen must recognize as exhaustive; property, whatever its species, is simply exempt or subject to be taxed. If exempt, it pays nothing; if subject, the amount it shall pay is measured by multiplying the fixed rate into the actual value. The result will be, in every instance, that all persons who own taxable property of equal value will pay the same amount of taxes, and all who own more than others will pay more, and all who own less will pay léss.

In Gilman vs. The City of Sheboygan, 2 Black’s Rep. 510, the Supreme Court of the United States, besides holding that the levying of taxes by a city under the authority of a State law, is the exercise of the taxing power as much as the taxation of the citizens directly for the support of the State government, holds further, that a requirement in the constitution that the rule of taxation shall be uniform, means that all kinds of property not absolutely exempt, must be taxed alike, by the same standard of valuation, equally with other taxable property, and co-extensively with the territory to which it appliesmeaning the territory from which the given tax, as a whole, is to be drawn. The opinion of Mr. Justice Swayne cites the following Wisconsin and Ohio cases, all of which should be read, not merely on the pages cited, but throughout. Knowlton vs. Rock County, 9 Wis. 410; Weeks vs. Milwaukee, 10 Wis. 242; Attorney-General vs. Plank Road Company, 11 Wis. 42; Bank of Columbus vs. Hines, 3 Ohio State, 15; and City of Zanesville vs. Richards, 5 Ohio State, 589. See also, 19 Wallace, 675; Burroughs on Taxation, 61, 62; Cooley on Taxation, 180.

By leaving out personalty, not only is the principle of uniformity, as well as the express requirement for the inclusion of all property subject to be taxed, violated, but the omission narrows the ordinance into a particular or special law, whereas the constitution declares that all taxes shall be levied and collected under general laws. There is a relative sense in which a mere local law can, with intelligible meaning, be called a law of general obligation. If it acts upon the whole municipal area and upon all persons and property therein, with the same comprehensive generality as it would act throughout the State were it applicable to the State at large, it is a law of general though local operation. This generality as to territory, with full generality as to subject-matter, that is, that the tax shall be uniform upon the same class of subjects, and ad valorem on all property subject to be taxed within the given territory, is the generality which is needful.

Again, the ordinance is obnoxious to the provision of the constitution, which declares that laws exempting from taxation any property other than that which the constitution expressly enumerates, shall be void. By taxing realty only, the ordinance by necessary implication exempts personalty, and the tax officers whose function it might be to collect taxes for the municipality would be compelled to treat personalty as beyond the purview of the ordinance. Were the terms of the ordinance comprehensive enough to embrace all property of both kinds, and then by some further provision one kind were expressly exempted, the latter provision might be treated as void, and the tax on both kinds be collected; Nevada vs. Eastbrook, 3 Nev. 173; Peeple vs. McCreery, 34 Cal. 432. But this resource is not available in the present instance, for the ordinance is no mixture of valid and invalid material, and consequently offers no opportunity for saving a part by rejecting the balance. There is no alternative but to treat the whole of it as either valid or void. We accordingly pronounce it void.

2. Nevertheless we shall not constrain the judge below to grant an interlocutory injunction, for the reason suggested in the second head-note. And see Wayne vs. Savannah, 56 Ga. 448; Hawkins vs. Jonesboro, 63 Ga. 527.

Judgment affirmed.