Ten years after DeKalb County voters approved the imposition of a one-percent homestead option sales and use tax “HOST” in the special tax district coterminous with the geographical boundary of DeKalb County, see OCGA § 48-8-102 a, enacted pursuant to Art. IX, Sec. II, Par. VI, Ga. Const. 1983, the Legislature amended the Homestead Option Sales and Use Tax Act, OCGA § 48-8-100 et seq., so as to provide for changes in the manner in which HOST proceeds are distributed in those special HOST districts in which a “qualified municipality”1 was thereafter created. See Ga. L. 2007, p. 598, § 1 et seq. hereinafter “H.B. 264″. In 2008, the City of Dunwoody was created in DeKalb County. See Ga. L. 2008, p. 3536/S.B. 82. The creation of this qualified municipality activated the 2007 legislative changes H.B. 264 made to the HOST Act. DeKalb County filed suit in July 2008 against the State of Georgia, its governor and the Georgia Department of Revenue’s commissioner seeking to enjoin those changes and to obtain a declaration that the pertinent H.B. 264 provisions in the HOST Act were unconstitutional. The trial court after a bench trial dismissed the State of Georgia as a party and ruled against DeKalb County as to the remaining defendants. This appeal ensued. 1. At the outset we recognize that “all presumptions are in favor of the constitutionality of an act of the legislature’ cit.,” Mayes v. Daniel , 186 Ga. 345, 350 1 198 SE 535 1938 and that “before an Act of the legislature can be declared unconstitutional, the conflict between it and the fundamental law must be clear and palpable and this Court must be clearly satisfied of its unconstitutionality.’ Cits.” City of Calhoun v. North Georgia Elec. &c. Corp. , 233 Ga. 759, 760-761 213 SE2d 596 1975. Moreover, because statutes are “presumed to be constitutional until the contrary appears, . . . the burden is on the party alleging a statute to be unconstitutional to prove it.” . . . Dee v. Sweet , 268 Ga. 346, 348 1 489 SE2d 823 1997. Dev. Auth. of DeKalb Co. v. State of Ga. , 286 Ga. 36, 38 1 684 SE2d 856 2009. 2. Our review of the hearing transcript establishes, contrary to appellant’s contention, that the trial court did not clearly err when it found as fact that H.B. 264 would not result in any gross tax increase to the unincorporated areas of DeKalb County. See generally OCGA § 9-11-52 a.
3. Appellant argues that voter approval of HOST creates a binding obligation between voters and a county’s governing authority in the same manner that voter approval of a special local option sales tax “SPLOST” mandates the use of those funds for the projects designated in the resolution or ordinance calling for the imposition of the SPLOST. See OCGA § 48-8-111 a 1; Johnstone v. Thompson , 280 Ga. 611 631 SE2d 650 2006 SPLOST referendum language meant school board could not abandon originally proposed uses for funds while those uses remained feasible of completion. Based on this argument, appellant asserts that, because the referendum question submitted to DeKalb County voters stated the funds raised by the HOST would be used “for county purposes,” see OCGA § 48-8-103 a setting forth required language for referendum question, those funds cannot be used for City of Dunwoody purposes without re-submitting the issue to DeKalb County voters. We need not decide whether a referendum would ever be required should the Legislature want to change the purpose for the imposition of a HOST because it is clear that no change in purpose occurred at all as a result of H.B. 264. As the referendum language itself makes clear, the tax for which it sought voter approval is “within the special district within DeKalb County.” That is because the HOST is not a “county tax” but a district tax levied to provide for services within that special district pursuant to the authority granted by Art. IX, Sec. II, Par. VI, Ga. Const. 1983 “special districts may be created for the provision of local government services within such districts”. See also City of Decatur v. DeKalb County , 277 Ga. 292 589 SE2d 561 2003. Nothing in this constitutional paragraph or the HOST Act restricts the provision of local government services to the governing authority of the county whose geographical boundary is coterminous with that of the special district. See Division 7, infra. Hence, H.B. 264 did not change the purpose of the HOST approved by DeKalb County voters when it provided for the distribution of HOST proceeds to the governing authority of each qualified municipality located in the special district. See OCGA § 48-8-104 d.
