dissenting.
The city council of Rome passed a tax ordinance for 1881, in which, after providing that three-fourths of one per cent, be levied for the purpose of meeting the liabilities incurred under the act of 1876, it was further provided that a tax of three-eighths of one per cent, be levied “ for current expenses for 1881, and for providing funds for the. erection of a suitable building for police headquarters, council chamber, court room, clerk’s office, town-hall and Mountain City engine house.”
The defendants in error filed a bill to enjoin the collection of so much of this tax as was to be appropriated to *118the erection of the building named in said tax ordinance. They rested their right to an injunction upon the following grounds: That the bonded debt of the city was more than ten per cent, on its taxable property; that the mayor and council had no power to levy a tax for the purpose named without first obtaining the approval of two-thirds of the legal voters of the city for that purpose; that the city was prohibited by the act of 1876 from con tracting any other debt so long as the. bonded indebtedness was unpaid; that whatsoever proportion of the three-eighths of one per cent, was to be used for the erection of the aforesaid building was in conflict with the seventh section of the seventh article of the constitution of 1877.
The answer of the defendant admitted* the statements in the bill as to the amount of the debt and the taxable property of the city, but insisted that in view of the necessity of the building, for a proper administration of the affairs of the city, and being incidental to the government thereof, and embraced within its ordinary expenses, that the tax of one-eighth of one per cent, had been levied for that purpose.
The chancellor enjoined the collection of the one eighth of the rate so levied, and that decision is alleged as error.
We find by the act of 1874 that the one-half of one per cent, is the maximum limit of taxation “for the ordinary current expenses ” of all municipal governments in the state, except the city of Savannah. By the act of 1876 the mayor and council were authorized and empowered to adjust and settle the bonded debt of the city and provide for its payment. It was further provided that it should not be lawful for the said mayor and council “ to contract any other debt, except for current expenses, so long as said bonds remain unpaid.”
By the constitution of 1877 it is provided that no municipality shall incur any new debt, except for a temporary loan to supply casual deficiencies of revenue, withut the assent of two-thirds of the qualified voters thereof,
*119The defendants in error rest their cause on these acts and the constitution, and it would séem ■ that if English words could limit the right of taxation, that they certainly have the law as a shield between them and the exercise of a power beyond the limit. But it is very doubtful -whether human legislation can be so framed as to defy the ingenuity of man in reaching, by construction and implication, the right to collect and disburse the public revenues illegally.
According to the act of 1874 it is unlawful for the mayor and council of Rome to levy or collect more than the one-half of one per cent, for the ordinary current ex. penses of the corporation, except as by said act provided, which provision is by a two-thirds vote of the legal voters; That they have the authority to levy the maximum amount, does not carry with it the right to levy it, when only one-fourth of one per cent, is needed for such expenses. The exact sum needed is the limit of their right, and not a pepper-corn beyond. If the whole be -needed, then the whole may be levied; if that amount is insufficient, then they must go to the voters.
It is not logical to say that because the right exists to levy the whole amount, if necessary for the ordinary current expenses, that the same right exists if not necessary.
It is however claimed on the argument that the words in the fourth section of the act, which are, “ that if an additional fund is required by said corporation for internal improvements not herein provided for,” are to be construed as falling within the meaning of the ordinary current expenses, of the corporation, and that that fund may be swelled to the maximum limit to enable the city to engage in internal improvements. To allow the exercise of so important a right as that of. taxation upon so strained a construction of this act would be a grave judicial error. The more especially so, when we search the act in vain for any provision for internal - improvements, except under the head of extraordinary- expenses.
*120It is also further insisted that the objects for which this tax-is to be levied, are necessary, and therefore properly-embraced within the term “ ordinary current expenses.” ■
Authorities have been cited in support of this view, and the leading case from 13 Mass., 278-9, arose upon a tax levied to pay for the defence of the town of Fairhaven in 1814, during an open war between the United States and Great Britain. ' The enemy were on the coast, in sight of the town, which was greatly exposed to their ravages, and they, were laying waste and destroying the dwellings of the people on the coast, and the inhabitants of the town thought it necessary, and voted unanimously to raise the tax for the purposes of the defence, the plaintiff himself not, however, being present at the meeting. The court held that, tax illegal'and unauthorized. It was argued in that case as in this, that having the power to levy taxes for certain purposes, “and for other necessary charges arising within the same town,” gave the right to levy it for this. The court ruled otherwise, although in the opinion, after'deciding the tax illegal, they say that the erection of town'halls and market houses may come under the term necessary town charges, but they did not so decide. The case before us is one where the authorities are limited to the ordinary current expenses — that is, the usual, customary, running, passing expenses of the city.
If the act of 1874 is not restrictive of this power by the mayor and council, it is to be remembered that in 1876 another act was passed authorizing them to adjust and settle their bonded indebtedness, that is, compromise with their creditors and execute new bonds. In this act it is declared .that it shall not be lawful to contract any other debt except for current expenses so long as the bonds remain unpaid. The ordinary construction of this clause would be that the city should incur no other obligation to pay money except for the current expenses. But again it is said that contracting to construct these buildings is not creating a debt, if the city have the money. A debt *121is that which one person owes to another, whether money, goods or services — something due. It may be that whilst the bondholder has no right and could not legally object to such a construction of this act, the tax-payer might, as he was a party thereto, having rights, as well as liabilities thereunder, and could claim to hold the taxing power to current expenses. He is the party seeking protection in this bill, and his appeal is not so much that a new debt shall not be created, as that the mayor and council shall be restrained from exceeding the limit of their power.
But over and above all this comes the constitution, and declares among other things that no county, municipal corporation or political division of the state shall incur any new debt, except for a temporary loan to supply casual deficiencies of revenue, without the assent of two-thirds of the qualified voters thereof.
It is admitted that a new debt could not be incurred except as above provided. Then the question is, whether a city can levy a tax with which to pay a future liability that it could not legally incur. If the right exists to make the contract, the time when the payment is to be made is wholly immaterial; it neither enlarges the power nor changes the nature of the liability. It is the incurring a new debt, whether paid when the work is done, or five years thereafter; it is a debt from the making the bargain until paid, be that when it may.
To say that for a new debt to be incurred, with which to build a town hall, without first submitting it to the people, would be unconstitutional, and to say that the levy of a tax to build a town hall without submitting that to the people would be constitutional, does not seem to me to be either law or logic. This provision in the constitution was to give the tax payers the right to say whether the expenditure should be made, and to require their assent before the taxes'should belaid for such expenditure.
There was no error, ín my judgment, in granting the injunction.