180 Ga. 371 | Ga. | 1935
Lead Opinion
(After stating the foregoing facts.)
The rulings stated in the first three headnotes require no further elaboration. The motion to dismiss the writ of error is overruled.
While it has been held by respectable authority that “a right of hearing need not have all the formality of trial in order to comply with the due-process clause,” there has been no explicit ruling by this court couched in such broad language; and to the contrary we are of the opinion that the previous ruling of this court in City of Macon v. Ries, 179 Ga. 330 (supra), properly construed, fixes the law of this case at least, contrary to the contentions of the plaintiff in error. Inasmuch as the decision of this court upon the former appearance of this case here was not agreed to by the entire court, it is not authority and binding as a precedent, but as between the same parties and as a part of the same action it is res judicata. As appears from the statement of facts the question now before us is reduced to whether the mayor and council of the City of Macon could arbitrarily restrict the “hearings” upon these tax-assessment appeals to the mere presentation of affidavits, depositions, and interrogatories, and thus, captiously or otherwise, deprive the appellants of the right to have the witnesses adverse to them faced and be submitted to a cross-examination, thorough and sifting, in the presence of the court. In.the previous appearance of this case to which we refer this court held:
In the bill of exceptions there are several assignments of error on the judgment of the court in refusing to strike the amendment to the petition. They are denominated as “written objections” to the allowance of the amendment filed on January 30, 1934. There were thirteen grounds of objection on which the defendant “moved to strike said amendment.” Grounds 1, 4, 5, 6, 9, 10, and 11 have been expressly abandoned. In the second objection it is insisted that the amendment attempted to set forth a new cause of action distinct /from that alleged in the original petition. This objection was without merit,
In objection 3 it is insisted that the amendment should not have been allowed, because the case (City of Macon v. Ries, 179 Ga. 320, supra) was pending in the Supreme Court. This statement is repeated in the brief of counsel for the plaintiff in error, and it is stated, “for the reason that when the judge certified the bill of exceptions he lost all jurisdiction over the case so far as-the allowance of the amendment was concerned.” No authority in support of this proposition is cited, and we know no law by which the court loses jurisdiction of “the case,” thereby meaning that the lower court lost jurisdiction of the entire action,
It is not necessary at this time to rule' on the remaining grounds of objection presented to the judge, each one of these being based upon the single motion to strike the proposed amendment as a whole, and none of them being sufficient for this purpose. This for the reason that the allegations of paragraphs 17, 18, 19, and 37 of the amendment, without more (and no objection was interposed to these paragraphs), entitled the petitioners to the relief sought.
Judgment affirmed.
Concurrence Opinion
concurring specially. Every ruling made in the case when it was formerly before this court (179 Ga. 320) in obedience to a question properly made and necessary for a decision of the ease, although not concurred in by all of the Justices, became the law of the case. Accordingly, such decisions are binding in the present case; and although adhering to the views expressed in the dissenting opinion heretofore rendered, I concur in them as the law in the present case. All issues not raised in the former case are unaffected by that decision. In the former decision, with reference to the introduction of evidence on the appeal from the assessors, this court stated: “So we are of the opinion that the appeal contemplated by the charter provision above quoted is a de novo investigation into the merits of the contentions of the taxpayers, with the right to introduce evidence and be heard on the questions incident thereto.” It was merely decided there that the appellants had a right “to introduce evidence,” and the court did not amplify the rulings by stating wdiat kind of evidence was admis
Assuming that the mayor and council could, under existing laws, restrict the evidence to affidavits and documents, such restriction must not amount to the denial of a substantial right. It was alleged in the amendment that the action of the mayor and council in so limiting the evidence in this case was not taken in good faith, but was intended to deny to petitioners a real hearing, while pretending to give them such a hearing as would satisfy the requirements of the charter, and that in the circumstances the hearing granted was one in form only and not in substance. The amendment further alleged that the defendants have systematically, wilfully, and arbitrarily discriminated against the plaintiffs and other taxpayers, and that there has been no bona fide attempt on the part of the defendants to comply with the city charter which authorizes taxpayers to appeal from the board of tax assessors to the mayor and council. If we should grant, for the sake of argument, that the mayor and council might, in a fair exercise of their discretion, require the taxpayers to submit evidence in the form of affidavits and documents only, such a restriction of the evidence would nevertheless constitute a denial of due process where in doing so the mayor and council were acting capriciously and in bad faith, in that they were merely endeavoring to afford a hearing in form only instead of proceeding to a fair and impartial consideration of the contentions of the taxpayers. A mere contrivance and pretense would not meet the requirements of due process, even though the proceeding adopted might, if carried out impartially and in good faith, constitute a lawful hearing and satisfy constitutional guaranties. The amendment to which reference has just been made
I concur generally in the other rulings of the majority, not mentioned in this special concurrence.
Concurrence Opinion
concurring specially. I agree that there was no merit in the motion to dismiss the writ of error. I also agree to the judgment of affirmance, but I can not concur in the view that the mayor and council could not, in the exercise of a proper discretion, restrict the evidence to affidavits and documents. This question, as to the method of procedure, was not considered or dealt with in the former decision, and therefore it is open for decision at this time. It is my opinion that the mayor and council could restrict the evidence as indicated, without a violation of any right of the taxpayers, provided such action was taken in good faith and with no intention of depriving the parties of a fair and impartial hearing. State ex rel. v. Cary, 166 Wis. 103 (163 N. W. 645); Tomlinson v. Board, 88 Tenn. 1 (12 S. W. 414, 6 L. R. A. 207) ; Board v. Johnson, 178 Ky. 287 (199 S. W. 8); Ballard v. Hunter, 204 U. S. 241 (27 Sup. Ct. 261, 51 L. ed. 461); Simon v. Craft, 182 U. S. 427 (21 Sup. Ct. 836, 45 L. ed. 1165); City of Macon v. Benson, 175 Ga. 502, 508 (166 S. E. 26), and cit. I agree, however, with the views expressed in the second division of the special concurrence by Mr. Justice Gilbert, and concur in the judgment solely upon the ground there stated.