City Council of Augusta v. Mangelly

Bowles, J.,

dissenting in part.

I concurred in the opinion of Martin v. Ellis, 242 Ga. 340 (249 SE2d 249) (1978), and concur in Division 1 of the cases here decided. To hold otherwise would be tantamount to saying the legislature is not bound by our constitutional limitations to tax, or else, as one dissent suggests, Code Ann. § 2-6201 is so broad that the provision "authorize any county to exercise the power of taxation for any public purpose authorized by general law...” is not limited. However, even after Martin v. Ellis, supra, and the above Division 1 of this opinion take effect, I am of the opinion that there remain several viable provisions of the Act.

The majority refuses to recognize that the Act is severable and thus strikes it down in its entirety. This causes disastrous results. If the remaining provisions were allowed to stand counties that have adopted the Act could continue to levy the tax and use the proceeds for the benefit of every citizen of the county uniformly; and taxes collected under the Act would not be considered as illegally collected, only their proper allocation and division with cities would be affected. As it now stands, the source of revenue from sales taxes will be abruptly terminated. The void created must be filled largely from ad valorem sources. Thus, the balance between tax sources is greatly imbalanced.

However, the most distasteful and disruptive result of Division 2 is that we conclude the legislature has no right to adopt a severability clause in one of its Acts. In the Act the majority now declares void in its entirety, the legislature specifically included a severability clause which reads (Ga. L. 1975, p. 984, Sec. 3): "In the event any section, subsection, sentence, clause or phrase of this Act shall be declared or adjudged invalid or unconstitutional, such adjudication shall in no manner affect the other sections, subsections, sentences, clauses or phrases of this Act, which shall remain in full force and effect, as if the section, subsection, sentence, clause or phrase so declared or adjudged invalid or unconstitutional were not originally a part hereof. The General Assembly hereby *370declares that it would have passed the remaining parts of this Act if it had known that such part or parts hereof would be declared or adjudged invalid or unconstitutional.”

We specifically held in Martin v. Ellis, supra, at p. 345, finding the roll back provision to be invalid,1 that "the remainder of the Act is sufficient to preserve the legislative scheme.” After the adoption of Division 1 of this opinion, and all taxpayers are fed out of the same spoon, the majority holds the legislative scheme is so disrupted that the remaining portions of the act cannot stand.

We said in Rich v. State, 237 Ga. 291, 303 (227 SE2d 761) (1976), "This court, furthermore, in considering severability, has always given great weight to legislative expression to this effect in the pertinent statutes.” If the legislative intent can be effectuated the Act should stand. Reed v. Hopper, 235 Ga. 298 (219 SE2d 409) (1975). Elliott v. State, 91 Ga. 694 (17 SE 1004) (1893), which has been frequently cited in subsequent decisions on this question, did not involve an Act containing a severability clause. The court in striking the entire Act there said, "The courts cannot construct from a defective statute a law which the law making body did not intend to enact and which it cannot be presumed it would have been willing to enact.” (Emphasis supplied.)

In the Act now under consideration, the legislature specifically states its intention in strong, precise and clear language. This court has to presume nothing. The intent is manifest. The Act having been so adopted, and approved by the governor, we have no authority to invade their *371province and hold "you don’t mean what you said.” In effect the majority holds a legislature has no right to adopt a severability clause in an Act. Therefore, I respectfully dissent.

The original Act resulted in the sales tax proceeds being apportioned between the county and certain municipalities in the county, based on population. Then city ad valorem taxes were rolled back on city property and county taxes were rolled back on property outside the cities. This resulted in reasonable equality of benefits. After Martin v. Ellis, supra, city property owners received two benefits, property owners outside municipalities received one.