The morning news. [volume] (Savannah, Ga.) 1887-1900, 1889-12-03
THE GROUND RENT LOTS.
a DECISION BEARING UPON THE
QUESTION OF TAXING THEM.

Formerly the State Could, by Con
tract, Restrict Itself in the Exercise
Of the Taxing Power-A Municipal
Corporation Had No Such Capacity
in Respect to the Taxing Power
Committed to It.
Chief Justice Bleckley of the state su-
preme court rendered decision in the case
OF Augusta factory VS.. the city council of
Augusta, Monday, Nov. %, which bears
directly upon the question whether groun d
rent lots in this city are taxable. The
opinion, synopsis of which has already
been published in the MORNING NEWS, is as
follows:
The Code, 1920, declares the granting
and continuing of injunctions must always
rest In the sound discretion of the judge
according to the circumstances of each
case. The judge having refused an injunc-
tlon IN the present case, the sole question
for our discrimination is whether in
doing SO he he failed to exercise
sound discretion according to the circum-
stances. 1t was insisted on the argument
that by the element of contract the case was
taken out of the general rule. The con-
tract referred to was a covenant on the part
of the city, made in July, 1858, with the
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.
Ii the covenant is to be regarded as an
attempt to limit or modify the taxing
power OF the municipality, we think that
IN the absence of express legislative author
NY 20 enter into it, the city had no power
make such 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 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 prop
erty, is matter Of doubtful validity. Cooley
Tax. 200; Desty Tax. 1866
Such ordinances were, however, allow
able IN Georgia prior to the constitution of
1877. Mayor of Athens VS.. Long, "a Ca,
$50; Warning VS.. mayor of Savannah. 60 Ga,
93 But we apprehend it never was within
the power OF city to bind itself by con-
tract either to forbear to impose taxes or
to impose them under certain given hmita-
lions, or on certain conditions In other
words, we think municipal government
could not hedge in its legislative power by
contract. State VS.. Hannibal, etc, R., rs
Mo. 2OS; Mack VS.. Jones, 81 N. H., 399.
1t 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 Railroad VS..
Atlanta, &c Ca, 104, the power to exempt
was expressly conferred on the city by the
cnarter or the railroad company. See Acts
| OF 1S65366, p. POI.
We have said this much to eliminate the
contract element from the case; though
were it to remain in it, we see not how it
could OF ought to vary the decision proper
to be made on the application for an in
terlocutory injunction, the duty now of the
city council being to levy and collect taxes
| upon the basis prescribed by
the constitution OF 1877, which
that laid down in the alleged covenant.
Where legal duties and rights coincide
precisely with the stipulations OF contract,
| and Gthe proceeding involves the
enforcement.of such legal rights and duties,
the contract stipulations become wholly i'm
material. In any view Of the subject,
therefore, the case before US is one depend
ing on the ordinary rules of the interiocu-
tory 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 in
| junction. Judgment affirmed.