179 Ga. 320 | Ga. | 1934
Lead Opinion
A number of taxpayers of the City of Macon sought injunction against the city to prevent the collection of taxes on their property. The city demurred to the petition. The demurrer was overruled, and the city excepted. The charter of the city (Ga. L. 1921', pp. 1283, 1338, sec. 94), provides: “When any property in the City of Macon has been returned for taxation at a value which in the opinion of the said board of tax-assessors is less than its fair market value, it shall be the duty of said board to ascertain the fair market value of said property and to assess it for taxation at said market value. When any assessment is made as herein provided, it shall be the duty of said board, within ten days after the making of said assessment, to give to the owner of such property notice in writing of said assessment. Such notice shall specify the amount of' the assessment made, indicate the property assessed, and shall inform the owner that he may be heard on the justness and fairness of said assessment and of the time and place of the hearing. Said notice shall be by mail not registered. . . Any taxpayer who may, after a hearing by the board, be dissatisfied with the action of said board on any such hearing, shall have the right to appeal to the mayor and council thereon, whose decision on said appeal shall be final.”
Here the taxpayers returned their property for taxation. The city tax-assessors were not satisfied with the return, and raised the assessment; and it was their duty, as provided by the above-quoted provision of the charter of the city, to give written notice to the taxpayers, specifying the amount of the assessment made, and informing the owners that they might be heard on the justness and fairness of said assessment, and of the time and place of the hearing. The taxpayers appeared at the time and place fixed by the tax-assessors, but the “board of tax-assessors refused petitioners a hearing upon the justice and fairness of said assessments, and would not permit them to testify or to introduce evidence to show that the said assessments were not just and fair, that they had not been equalized with other properties in the city similarly situated, but were grossly in excess of other returns and assess
The City of Macon having closed its doors to the petitioners, they had no court except a court of equity, having been denied a right guaranteed to them by both the State and Federal constitutions. Due process of law requires, that, “after such notice as may be appropriate, the taxpayer have opportunity to be heard as to the validity of a tax and the amount thereof, by giving him the right to appear for that purpose at some stage of the proceedings.” Turner v. Wade, 254 U. S. 64 (41 Sup. Ct. 27, 65 L. ed. 134); Central of Ga. R. Co. v. Wright, 207 U. S. 127 (28 Sup. Ct. 47, 52 L. ed. 134). “The fundamental idea in ‘due process of law’ is that of ‘notice’ and ‘hearing.’ It means that the citizen must be afforded a hearing before he is condemned. There must be a hearing first, and judgment can be rendered only after trial.” Arthur
The plaintiff in error contends by demurrer that the appeal provided for in the city charter of Macon does not mean a de novo hearing or proceeding. The charter provides (Ga. L. 1927, p. 1338, sec. 94) that any taxpayer who, after a hearing by the board of tax-assessors, may be dissatisfied with the action of that board on any such hearing, “shall have the right to appeal to the mayor and council thereof, whose decision on said appeal shall be final.” It was held in Central Georgia Power Co. v. Cornwell, 139 Ga. 1 (3) (73 S. E. 387, Ann. Cas. 1914A, 880) : “An appeal from an award of assessors appointed in condemnation proceedings under the Civil Code, §§ 5206 et seq., is a de novo investigation, and the defendant in such proceedings may file an appropriate legal defense thereto.” In 3 C. J. 314, 315, § 28 (2 a), it is said: “In its original and strictly technical sense an appeal was a proceeding introduced into equity practice from the civil law, by which the whole case was removed from a lower to an appellate court, and there tried de novo upon evidence newly introduced, being subject to a new and final determination as if it had not been tried before, and without any reference to the conclusions of the inferior court.” An appeal from an inferior to a superior court for another trial, as an original case, was unknown to the common law. Such appeals are of statutory origin, and the practice and mode of procedure aTe prescribed by statute. The appeal provided by the charter of the City of Macon makes no provision with reference to mode and procedure, and in determining the mode of procedure our general statutes must be looked to. In this State appeals to the superior court lie in all cases tried in a justice’s court, or in a county court, and from any decision made by the court of ordinary. Civil Code (1910), §§ 4998, 4999. When an appeal has been entered in the court of ordinary, it shall be the duty of the ordinary to transmit the same to the clerk of the superior court of the county in which such proceedings may have been had, . . to be there tried as other appeals. § 5012. “An appeal to the superior court is a de novo investigation. It brings up the whole record from the court below; and all competent evidence is admissible on the trial
The demurrer raises the point that the petition is multifarious; that there is no common right of these taxpayers against the city; that each owns individual property and that each is liable for his individual taxes. The question at issue is whether the taxpayers were denied the right to present their case before the board of tax-assessors, and before the mayor and council on 'appeal. In this question each and all of the plaintiffs were interested, each and all were denied this right, and each and all brought the present petition for equitable relief, complaining of the denial of this right. “Where a number of people have a common interest in the result of a suit, they can all join in an action to assert their rights, and parties being so joined does not make the case open to the objection that there is a misjoinder of parties plaintiff.” East Atlanta Land Co. v. Mower, 138 Ga. 380 (3) (75 S. E. 418). See First-National Bank of Sparta v. Wiley, 150 Ga. 759 (105 S. E. 308). “A
It is contended that the taxpayers did not come into a court of equity with clean hands; that they did not offer to do equity, in that they failed to tender the amount of taxes which they admit, either expressly or impliedly, that they owed when they made a return of their property for taxation. The returns they made were rejected by the board of tax-assessors, which left no valuation upon which a tax could be computed; and until there is a legal assessment there can be no tax, the assessment made by the board being illegal for the reason that the plaintiffs were denied a hearing at the fixing of the assessments. In Norwood v. Baker, 172 U. S. 269, 293 (43 L. ed. 443), Mr. Justice Harlan, after quoting from High on Injunctions, “It is held, however, that the general rule requiring payment or tender of the amount actually due as a condition to equitable relief against the illegal portion of the tax has no application to a case where the entire tax fails by reason of an illegal assessment; and in such case an injunction is proper without payment or tender of any portion of the tax, since it is impossible for the court to determine what portion is actually due, there being no valid or legal tax assessed,” said: “The present case is not one in which — as in most of the cases brought to enjoin the collection of taxes or the enforcement of special assessments — it can be plainly or clearly seen, from the showing made by the pleadings, that a particular amount, if no more, is due from the plaintiff, and which amount should be paid or tendered before equity would interfere. It is rather a case in which the entire assessment is illegal. In such a case it was not necessary to tender, as a condition of relief being granted to the plaintiff, any srun as representing what she supposed, or might guess, or was willing to concede, was the excess of cost over any benefits accruing to the property.” See City of Camilla v. Cochran, 160 Ga. 424, 430 (128 S. E. 194). This is not a case where the contention is that the assessment is excessive, thus admitting that some amount is due; -but it is contended that the entire assessment is void for the reasons stated in the petition. The tax-assessors have said that they will not accept
The court did not err in overruling the demurrers to the petition. Judgment affirmed.
Dissenting Opinion
dissenting. The plaintiffs made returns of their property at valuations clearly stated by them, and thus admitted to be fair. In these circumstances, they should not have relief in equity to avoid the assessments made by the city authorities, without tendering the amounts due and payable under their own valuations. Conceivably the assessors might reduce the valuations as stated in such returns, but it is not insisted that any such reduction should be made. So far as appears, the plaintiffs are merely complaining of the act of the assessors in raising such valuations. Under the facts of this case, a tender of the tax due upon the valuations stated in the returns should have been made. Linder v. Watson, 151 Ga. 455 (2) (107 S. E. 62); People’s National Bank v. Marye, 191 U. S. 272, 287 (24 Sup. Ct. 68, 48 L. ed. 180); Raymond v. Chicago Union Traction Co., 207 U. S. 20, 38 (28 Sup. Ct. 15, 52 L. ed. 78). The present case is distinguished from cases where an assessment is made under a void statute or ordinance, or the property is not at all subject to be taxed or assessed as claimed. Cf. City of Camilla v. Cochran, 160 Ga. 424 (supra); Norwood v. Baker, 172 U. S. 269, 292 (supra).
Furthermore, the plaintiffs failed to avail themselves of their legal remedies. When the taxing authorities refused to give the plaintiffs a hearing, mandamus was a remedy open to each of the plaintiffs to compel a hearing. Schlesinger v. Atlanta, 161 Ga. 148, 165 (129 S. E. 861); Garrison v. Toccoa Power Co., 177 Ga. 850 (171 S. E. 564); Coxe v. Salomon, 188 Ill. 571 (59 N. E. 422); White v. Raymond, 188 Ill. 298 (58 N. E. 976); Curless v. Watson, 54 Ind. App. 110 (100 N. E. 576); Bistor v. Board of Assessors, 346 Ill. 362 (179 N. E. 120); Marion Mfg. Co. v. Board of Commissioners, 189 N. C. 99 (126 S. E. 114). The assessments were not void because the assessors or other officials refused to allow a hearing, but were merely erroneous or irregular. The plaintiffs, having failed to proceed at law at the proper stage, should not now be permitted to treat the assessments as void and to cut across them by a petition in equity. Equity is not a remedy to cure hard