CHANNELL v. HOUSTON

HINES, Justice.

Dene Channell, Marion Rhodes, Titus Andrews, Sr., Gerald Torbert, and W.L. Sanders, in their capacity as members of the Greene County Board of Commissioners ("Board"), appeal the trial court's order granting to Chris Houston, in his capacity as Sheriff of Greene County ("Houston"), relief in the form of a declaratory judgment that a special tax district established by the Board is unconstitutional, and enjoining the Board from implementing the special tax district. For the reasons that follow, we affirm.

On March 17, 2009, the Board passed a resolution to create a special tax district to fund the Greene County Sheriffs Office, with the district covering the entire county. Houston brought suit against the Board seeking, inter alia: a declaratory judgment that the establishment of such a special tax district was unconstitutional; a declaratory judgment that the Board's separate "Fleet Management Policy" regarding Sheriffs office vehicles was unconstitutional; that a writ of mandamus issue to require the Board to pay Houston's previously authorized salary supplement; and that injunctions issue preventing the Board from implementing the special tax district and the "Fleet Management Policy," and from further interfering with his duties. After a hearing, the superior court issued a declaratory judgment that the special tax district was unconstitutional, declared the resolution establishing it void, and enjoined the Board from implementing it. The court also ruled that the Board's action regarding Houston's salary supplement was legal, as the reduction would not take place during his then-current term of office, and that other prayers for relief were moot. We review de novo the trial court's ruling that the Board's resolution was unconstitutional. See Atlanta Oculoplastic Surgery, PC v. Nestlehutt, 286 Ga. 731 ( 691 SE2d 218) (2010).

At the hearing, counsel for Houston stated that the Board had chosen not to proceed with the Fleet Management Policy issue, and that Houston would not pursue his prayers for relief regarding it. Houston has not appealed that portion of the court order addressing the Board's action regarding his salary supplement.

The power of county boards of commission in Georgia is not unlimited.

Neither the counties of this state nor their officers can do any act, make any contract, nor incur any liability not authorized by some legislative act applicable thereto. If there is reasonable doubt of the existence of a particular power, the doubt is to be resolved in the negative. Powers of county commissioners are strictly limited by law, and they can do nothing except under authority of law.

Mobley v. Polk County, 242 Ga. 798, 801-802 (1) ( 251 SE2d 538) (1979) (citations omitted). See also Boswell v. Bramlett, 274 Ga. 50, 52 (2) ( 549 SE2d 100) (2001). As to the Board's authority to create a special tax district, our State Constitution provides:

As hereinafter provided in this Paragraph, special districts may be created for the provision of local government services within such districts; and fees, assessments, and taxes may be levied and collected within such districts to pay, wholly or partially, the cost of providing such services therein and to construct and maintain facilities therefor. Such special districts may be created and fees, assessments, or taxes may be levied and collected therein by any one or more of the following methods:

(a) By general law which directly creates the districts.

(b) By general law which requires the creation of districts under conditions specified by such general law.

(c) By municipal or county ordinance or resolution, except that no such ordinance or resolution may supersede a law enacted by the General Assembly pursuant to subparagraphs (a) or (b) of this Paragraph.

Ga. Const. of 1983, Art. IX, Sec. II, Par. VI. The Board asserts that providing the functions of the Sheriffs office is a "local government service" within the meaning of this provision, and thus creating a special tax district to fund those functions is authorized by the Constitution.

Sheriffs are elected, constitutional officers, Ga. Const. of 1983, Art. IX, Sec. I, Par. III (a), with duties arising from statutory and common law. See Elder v. Camp, 193 Ga. 320 ( 18 SE2d 622) (1942); Mayo v. Fulton County, 220 Ga. App. 825 (1) ( 470 SE2d 258) (1996). They are not employees of county commissions. Bd. of Commrs. of Randolph County v. Wilson, 260 Ga. 482, 483 (1) ( 396 SE2d 903) (1990). The duties of sheriffs are beyond the control of county governing bodies, and those bodies may not interfere with such duties. Wolfe v. Huff, 233 Ga. 162 ( 210 SE2d 699) (1974); Wolfe v. Huff, 232 Ga. 44 ( 205 SE2d 254) (1974). Sheriffs clearly perform governmental services on a local level, and county governing bodies do have certain budgetary power regarding sheriffs' offices. See Bd. of Commrs. of Dougherty County v. Saba, 278 Ga. 176, 176-178 (1) ( 598 SE2d 437) (2004); Chaffin v. Calhoun, 262 Ga. 202, 203 ( 415 SE2d 906) (1992). However, the independence of the constitutional office of sheriff from the county governing body prompts the conclusion that the power to create special tax districts under Article IX, Section II, Paragraph VI of the Georgia Constitution does not embrace the creation of a special tax district for the provision of the services of this office.

This conclusion is further supported by an examination of the Home Rule provision of our State Constitution, which is found in Article IX, Section II, Paragraph I. This paragraph grants

[t]he governing authority of each county . . . legislative power to adopt clearly reasonable ordinances, resolutions, or regulations relating to its property, affairs, and local government for which no provision has been made by general law and which is not inconsistent with this Constitution or any local law applicable thereto.

But, that provision specifically limits the power of the county governing authority such that it cannot take action "affecting any elective county office. . . ." Ga Const. of 1983, Art. IX, Sec. II, Par. I (c) (1). And, this Court has previously stated that "the office of sheriff is specifically exempt from Home Rule." Warren v. Walton, 231 Ga. 495, 499 ( 202 SE2d 405) (1973). Although the Board contends that under its plan to create a special tax district, there would be no difference in the amount of funds ultimately appropriated for the Sheriffs Office, the occurrence of such a circumstance does not create a power that the Board is not otherwise granted. See Mobley, supra. Without the Board having the constitutional authority to create a special tax district funding the duties of a constitutional officer such as Houston, it was not error for the trial court to enter the declaratory judgment and to enjoin the implementation of the special tax district. Judgment affirmed. All the Justices concur.

The Board asserts that a declaratory judgment was not authorized, but such an action may be instituted to "settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations. . . ." OCGA § 9-4-1. See Higdon v. City of Senoia, 273 Ga. 83, 85 (1) ( 538 SE2d 39) (2000).