46 S.E.2d 578 | Ga. | 1948
1. The word "property" in the Code, § 92-5712, providing for a release of security from liens for taxes upon payment as therein prescribed, where the security is assessed with other property, means both real and personal property.
2. The provisions of the statute are not violative of article 4, section 1, paragraph 1 of the Constitution of 1877 (Code, § 2-2401), as to the sovereign right of the State to tax. Nor is the statute in conflict with article 7, section 1, paragraph 1 of the Constitution of 1945 (Code, Ann. Supp., § 2-5401).
3. Under the facts alleged in the petition and stipulated as true, a proper *286 case for a declaratory judgment was presented, and the court did not err in overruling the demurrers and entering judgment declaring that the petitioner was entitled to a release of his security, certain real estate, from liens for State and county ad valorem taxes for the year 1945 upon making payment as offered and as prescribed in the Code, § 92-5712.
The defendants each filed demurrers on the following grounds: (1) no cause of action is set forth against the defendant; (2) the petition does not set forth an actual controversy entitling the petitioner to a declaratory judgment; (3) the petition does not set forth a cause of action for equitable relief.
The defendants also filed answers, which as amended denied that the petitioner was entitled to the relief sought, and contending that the Code, § 92-5712, upon which the petitioner relied was unconstitutional, in that it violated article 7, section 1, paragraph 1 of the Constitution (Code, Ann. Supp., § 2-5401), and the provisions of the Constitution as appearing in the Code, § 2-2401, before the 1945 amendment to the Constitution, being the same as the provisions of article 7, section 1, paragraph 1, supra, for the reason that, where a tax execution for ad valorem taxes *288 covers only one piece, parcel, or tract of real estate, and it is shown that a release executed by the tax collector would seriously impair or extinguish the lien for taxes, it restrains the sovereign right of the State to tax as declared by the Constitution. They prayed that it be declared by the court that the tax collector did not have the right to release the real estate as sought by the petitioner; that the act of 1931 (Ga. L. 1931, p. 122) as amended by the act of 1933 (Ga. L. 1933, p. 50), codified as § 92-5712, has no application when a tax execution covers only one piece, parcel, or tract of real estate; and that the said act of 1931 as amended (Code, § 92-5712) be declared unconstitutional if applied to a release as sought by the petitioner.
When the case came on for a hearing, the defendants, on October 4, 1947, admitted that the allegations of fact in the petition were true; and it was agreed between the parties that the judge of the court hear and determine all issues in vacation without a jury. On October 11, 1947, the court rendered judgment overruling the demurrers, and declaring that the petitioner was entitled to the relief sought, the judgment being based "on the stipulation and finding that G. A. Carter returns no real estate in Bacon County other than the land covered by the plaintiff's deed to secure debt, and that no other land in Bacon County is assessed as the property of G. A. Carter."
The exception here by the defendants is to that judgment.
1. The statute, Code, § 92-5712, under authority of which the petitioner seeks to have the security of its loan released from the lien for ad valorem taxes provides that "The owner or the holder of any equity, lien, or interest in or on property
returned or assessed with other property for taxes shall be allowed to pay the taxes assessed against any one or more pieces of such property" under the conditions stated. (Italics ours.) One of the issues here is whether or not the word "property," which we have italicized, should be construed to refer only to real property or to both real and personal property. The Code *289
itself furnishes a guide to the construction of such an act, it being provided in § 102-103 that "The following meanings shall be given to the following words in all statutes, unless a different meaning is apparent from the context: . . Property includes real and personal property." See also Fears v. State,
2. But counsel for the plaintiffs in error insist that, if the statute is to be construed as we have done, it is violative of article 4, section 1, paragraph 1 of the Constitution of 1877 (Code, § 2-2401), and article 7, section 1, paragraph 1 of the Constitution of 1945 (Code, Ann. Supp., § 2-5401). In support of this view it is urged that where, as here, a tax execution covers only one piece, parcel, or tract of real estate, and it is shown that a release thereof by a tax collector would seriously impair or extinguish the lien for taxes, the sovereign right of the State to tax as declared by the Constitution is thereby restrained. We are unable to see wherein the statute has the effect claimed. It in no wise restrains or restricts the right to tax, and in the present case assessments have been made on both the real and the personal property here involved, and execution has been issued with the respective amounts of the taxes shown therein. The tax on the land on which the petitioner has a lien is paid as fully, when the proceedings authorized by the statute have been completed, as if collected directly from the defendant in execution. It may, of course, result in the taxing authorities being without any realty upon which to levy if the personal property be secreted, and thus the lien of the State and county to that extent become ineffective, but the Constitution does not purport, in article 7, section 1, paragraph 1 (Code, Ann. Supp., § 2-5401), or elsewhere, to protect the lien of a tax. If the lien here be rendered impotent as to the real estate, it will merely have suffered the fate of many liens for taxes, as witness the numerous instances where taxes have been uncollectible after seven years from the date of issuance of an execution or from the time of the last entry upon the execution by the proper officer. See Code, § 92-7701; Georgia Railroad Bkg. Co. v. Wright,
3. The plaintiffs in error contend that a case for a declaratory judgment is not here presented, because the petitioner has an adequate remedy by mandamus, injunction, or affidavit of illegality. It has been held by this court, however, that though there exists a remedy, either in law or equity, a petition for declaratory judgment will lie "when there be some fact or circumstances which necessitate a determination of disputes, not merely for the purpose of enforcing accrued rights, but in order to guide and protect the petitioner from uncertainty and insecurity with respect to the propriety of some future act or conduct which is properly incident to his alleged rights, and which future action without such direction might reasonable jeopardize his interest." Mayor c. of Athens v. Gerdine,
Judgment affirmed. All the Justices concur, except Bell, J.,absent on account of illness, and Wyatt, J., who took no part inthe consideration or decision of this case.