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The Atlantic and Gulf Railroad Company vs. The State of Georgia.

60 873 60 277 62 483

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55 312 j112 593

55 312 THE ATLANTIC AND GULF RAILROAD COMPANY, plaintiff

in error, vs. THE STATE OF GEORGIA, defendant in error. The act of 28th of February, 1874, taxing the Atlantic and Gulf Railroad

Company an amount exceeding one-half of one per cent. upon its annual net income, is not unconstitutional, as impairing the obligations of the contract embraced in its charter.

BLECKLEY, Judge, concurring. 1. Whatever power legislative bodies may have in other states of the union,

to part with or limit the essential prerogatives of sovereignty, no such power exists, or ever has existed, in the general assembly of Georgia. Consequently, all exemptions from the common burdens of taxation hitherto granted by the statute to corporations or others, ought to be construed as

privileges only, and as revocable at the will of the legislature. 2. If, in any case, the state has received into the public treasury, directly

from the grantees, a valuable consideration for the grant of exemption, upon afterwards withdrawing the privilege before the time has expired for which it was granted, an equitable proportion of the consideration ought, as a matter of common justice and public virtue, to be refunded; but the duty to refund is in the nature of a mere debt for money had and received, and the good faith of the state must be trusted to provide for its payment. Payment is not a condition precedent to resuming the exercise of the taxing power unimpaired in its original extent and vigor. The taxing power cannot be lost or abridged either by contract or estoppel.

Constitutional law. Tax. Corporations. Charter. Laws. Before Judge HOPKINS. Fulton Superior Court. October Term, 1874.

Reported in the opinion.

LOVELL & FALLIGANT; HARTRIDGE & CHISHOLM, for plaintiff in error.

R. TOOMBS; N. J. HAMMOND, attorney general, for the state.

WARNER, Chief Justice.

This case came before the court below on an affidavit of illegality filed by the defendant to a tax execution issued by the comptroller general of the state, which had been levied on the defendant's property. The tax execution was

McNeil et al. vs. Smith.

issued in pursuance of an act of the general assembly of this
state, approved on the 28th day of February, 1874, entitled
“An act to amend the tax laws of this state, so far as the
same relate to railroad companies, and to define the liabilities
of such companies to taxation, and to repeal so much of the
charters of such companies respectively as may conflict with
the provisions of this act." The defendant insisted in its affi-
davit of illegality, that neither by the terms of the original char-
ters granted by the general assembly to the Savannah and
Albany Railroad Company in 1847, and to the Atlantic and
Gulf Railroad Company in 1856, nor by the act of the 18th
of April, 1863, consolidating the aforesaid two companies,
was it liable to be taxed higher than one-half of one per cent.
on its annual net income, and that the act of the 28th of
February, 1874, in so far as it authorized the levy and col-
lection of a higher tax on the property of defendant than one-
half of one per cent. on its annual net income, was in viola-
tion of the 10th section of the 1st article of the constitution
of the United States, and therefore void. The court over-
ruled the defendant's affidavit of illegality, and the defendant
excepted.

The main questions made by the record in this case were involved and decided by this court in the case of The Central Railroad and Banking Company and The Southwestern Railroad Company vs. The State, 54th Georgia Reports, 401, and are controlled by it.

Let the judgment of the court below be affirmed.

BLECKLEY, Judge, concurred on special grounds, as stated in the above head-notes, but furnished no written opinion.

55 313 106 837

JAMĖS MCNEIL et al., plaintiffs in error, vs. JAMES M. SMITH, governor, for use, defendant in error.

.

Administration granted by the ordinary, in 1867, to the clerk of the superior court, did not place the administration under the security of the clerk's offi

VOL. LV. 21.

McNeil et al. vs. Smith.

cial bond, given in February, 1866; and the clerk and his sureties are no liable, upon that bond, for a devastavit.

55 314 85 573

Administrators and executors. Clerk of the Superior Court. Bonds. Before Judge JAMES JOHNSON. Talbot Superior Court. March Term, 1875.

Reported in the opinion.

E. H. WORRILL; BLANDFORD & GARRARD, for plaintiffs in error.

W. A. LITTLE, by PEABODY & BRANNON, for defendant.

BLECKLEY, Judge.

The declaration was demurred to, and the demurrer was overruled. The action was by the governor, for the use of the legatees of an estate upon which the ordinary had granted administration to the clerk of the superior court in 1867, the clerk having been elected in January, 1866, and given bond with security, in the usual form, in February, 1866. The declaration was founded on this official bond, and alleged a devastavit by the clerk as administrator. The question made by the demurrer was, whether the clerk and his securities on his bond, given in 1866, were liable upon the bond for the alleged devastavit.

The bond required of clerks of the superior court is the same in amount for each county in the State: Code, section 266. The bond to be given by administrators varies in amount with the value of the estate: Code, section 2505. If some clerks are administrators and others not, there is need for additional bonds from the former; and if some clerks have in their hands more valuable estates than others, there is need for heavier bonds in proportion to the greater value. This will harmonize the two systems, of uniformity in clerks' bonds and variety in administrators' bonds. Administration in po instance devolves upon the clerk by virtue of his office; he has to be appointed by

Dorsey vs. Black.

the ordinary, after citation, and may be appointed or not, (Code, sections 2495, 2496, 2497,) in the ordinary's discretion, under certain restrictions. He is compelled to serve, (Code, section 2495;) but so he was prior to the adoption of the Code, (20 Georgia Reports, 775;) yet it was ruled that the administration vested in the individual, and not in the officer, and was not transmitted with the office of clerk to the successor : 22 Georgia Reports, 431. It is difficult to see how a duty which remains to be performed, in part, and perhaps in the most material and responsible part, after the official term has expired, and after a successor has been elected and qualified, and is in full exercise of the ordinary functions of the office, can be treated as an official duty secured by the official bond.

In the present case, we have the less difficulty in holding that the clerk's securities are not liable, as the bond was given before the passage of the act of 1866, (Code, section 2495,) and as it does not appear that the devastavit complained of was committed while the clerk was in office as clerk. We do not say that were these two facts otherwise our judgment would be different, but they have some weight in shaping our opinion on the particular case before us.

Judgment reversed.

John M. DORSEY, executor, plaintiff in error, vs. John W.

BLACK, defendant in error.

55 315 62 346 65 601 66 243 69 844

1. When a party applies for the writ of certiorari, under section 4056 of the

Code, he must make affidavit not only that he believes, but that “he is ad

vised” that he has good cause for certiorari. 2. When there is no question of fact, in the judgment of the superior court,

involved, and hence no need of a new trial, it is “the duty of the judge to render a final judgment and have it executed in the case without sending

it back to the tribunal below.” 3. Strict pleading is not required in the justice courts, and the omission of

the word “as” before executor, in a suit there against such executor, or in the verdict or judgment against him, does not vitiate the proceeding.

Dorsey vs. Black.

Certiorari. Justice Courts. Administrators and executors. Judgments. Before Judge Rice. White Superior Court. May Term, 1875.

Reported in the opinion.

G. M. NETHERLAND, for plaintiff in error.

WIER BOYD, for defendant.

JACKSON, Judge.

A motion was made in the justice's court to enter up judgment, nunc pro tunc, upon the verdict of a jury rendered in 1864. The justice refused to grant the motion, and the plaintiff, J. W. Black, carried the case by certiorari to the superior court. That court sustained the certiorari, and passed an order for a new trial, and directing the justice to enter and sign up judgment, nunc pro tunc, for the plaintiff for principal, interest and costs." The defendant appeals to this court, and assigns for error: first, that the court erred in this, that the statute, in cases where the costs are not paid and bond given, requires the party applying for the writ to swear that he is advised,” as well as that he believes he has good cause for certiorari; secondly, that the court erred in this, that he not only granted the new trial but directed the justice to enter and sign up judgment; thirdly, that the verdict was against the defendant, executor, and not as executor.

1. Where a party applies for the writ of certiorari under section 4053 of the Code, the statute prescribes that he shall swear that he "verily believes" he has good cause for certiorari, and stops there; but where he applies, under section 4056, which is the case here, he is required to swear, in addition, that "he is advisedthat he has such good cause.

It would seem that the legislature intended that when the party could not pay the costs and give the security, as in ordinary cases, under section 4053 of the Code, he should get competent advice before delaying the other party. At all events the statute

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