Brown v. Southern Railway Co.

54 S.E. 729, 125 Ga. 772, 1906 Ga. LEXIS 266

• Court: Supreme Court of Georgia
• Decided: July 2, 1906
• Status: Published

Opinion

Evans, J.

(After stating the facts.) In the case of the Georgia R. Co. v. Hutchinson, ante, 762, the act of August 23, 1905,. providing for the establishment of district schools^ was under consideration by this court, and that act was held to be constitutional and capable of being carried into effect, so far as the levying- and collection of the local school tax authorized by the second section 'thereof was concerned, though it was not contemplated by the General Assembly that the tax’ should be assessed and collected for the year 1905. The present ease, however, presents an entirely different question. So much of the act as provides for the levying and collection of a local tax by school districts laid off in the manner prescribed is attacked as void, because it excludes from the-scheme of taxation all railroad property, the 4th section of the act providing that the following method of assessing the tax shall be-pursued: “The secretary of the board of trustees, with the aid of the county school commissioner, shall ascertain from the tax digest of the county the tdx returned on all property in said school district, and by the first day of October in each year shall levy such a rate on the property thus found that will raise the total amount to be collected; provided, that said rate shall not exceed three-quarters of one per cent.” Acts of 1905, p. 428. Thus, the authority of the assessors -in levying the tax provided for any local school district is expressly limited to the lajdng of a tax upon property of which a return has been made to the tax-receiver and of which an entry has been made upon his digest. Eailroad property is not. returned to the tax-receiver, but, under express provision of law, must be returned to the comptroller-general/ It is therefore apparent that the act of 1905 does not authorize the imposition of the tax upon such property of a railway company as may be located within a particular school district. The constitution of this State declares that “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.” Civil Code, §5883. A statute which undertakes to impose an ad valorem tax upon the property of certain taxpayers, and exempts from its operation the property of another class of taxpayers subject to be taxed within the territorial limits of the authority levying the tax, is void by reason of conflict with the constitutional provision just quoted. Verdery v. Summerville, 82 Ga. 138. Therefore, not only does the 4th section of the act of 1905 afford no authority for levying a tax on railroad property, but the act is necessarily inoperative as to all other taxpayers, in so far as it relates to the assessment and collection of a local tax for the support of district schools established in accordance with the provisions of the third section of the act.

Judgment affirmed.

All the Justices concur, except Fish, G. J., absent.