175 Ga. 738 | Ga. | 1932
The Moultrie Banking Company brought a petition against the City of Moultrie and its marshal, L. L. Smith, praying that they be enjoined from collecting a municipal tax upon the property of the Moultrie Banking Company for the year 1929. The appearance term was agreed upon as the trial term, and the case came on to be heard by the court upon the pleadings and an agreed statement of facts. The court made rulings upon questions raised by the defendants’ demurrer to the plaintiff’s petition and the demurrer of the plaintiff to the answer of the defendants, and rendered a judgment and decree enjoining the defendants from enforcing the execution for taxes. To the rulings upon demurrers and to the final judgment the defendant excepted.
The decree rendered by the court was as follows:
“The above-stated cause was, by agreement of counsel for the parties at variance, submitted to the court at the appearance term thereof, as the trial term, to pass upon all issues of law and fact, without the intervention of a jury, and render a final decree, without prejudice to the right of either party to except. Plaintiff prays for an injunction against the defendants to prohibit the enforcement of a tax execution issued by the City of Moultrie against it for taxes for the year 1929, on the ground that said execution is predicated on an illegal assessment, and that the city tax assessors refused to allow any deduction on account of real estate owned by plaintiff, fully paid for and located outside the corporate limits of defendant city, from the assessed value of the shares of plaintiff’s shareholders. The questions presented by the pleadings are involved and technical. I am of the opinion that it is the purpose of the law to allow deductions to be made from the assessed value of plaintiff’s shareholders as made by the city’s tax assessors of the
In its answer to the petition in this case the defendant pleaded in part as follows: "(11) Defendants admit that it has caused the clerk to issue an execution against petitioner for unpaid taxes for the year 1929 in the principal sum of $7,807.23, on which amount petitioner has paid the sum of $5,648.47, leaving a balance of $2,-158.76, besides cost and interest from December 1, 1929, at 7% per annum, but the defendants deny that its clerk unlawfully issued said execution, and further deny the remaining allegations of said paragraph 11 of the petition. (12) Defendants admit that on December 3, 1929, petitioner paid to the defendant, City of Moultrie, on its ad valorem taxes for the year 1929, the sum of $5,648.47, but the defendants deny that said amount was the entire amount lawfully due the City of Moultrie by petitioner as taxes for the year 1929. . . (14) Defendants deny the allegations of paragraph 15 of the petition. Defendants deny said tax execution is illegal and void for any reason set out in paragraph 16 of the petition, and deny: (a) that the same is based upon an assessment for taxes of the paid-in capital, surplus, and undivided profits of the petitioner; (b) that the same is based upon the assessment of real estate owned by petitioner and fully paid for and which lies without the corporate limits of the City of Moultrie; (c) that said execution is not based upon an assessment of the market value of the shares of stock of petitioner’s stockholders, as provided by law; (d) that the clerk of the City of Moultrie is without power to issue summary execution for taxes under the charter of the said City or the laws of Georgia. (15) And now having fully answered said petition, paragraph by paragraph, for further plea and answer these defendants show:
The plaintiff demurred to the defendant’s answer upon several grounds. The 6th ground of this demurrer was: “The defendants are estopped from raising the constitutional questions presented in paragraph 15-1 to 15-n, both inclusive; it having sought and accepted a charter from the State granting it the power of taxation and providing the method for the exercise of said power, it will not be heard to question the validity of such taxing power.” The court overruled all of the grounds of demurrer except the 6th, just quoted. The defendants excepted especially to the sustaining of the 6th ground of the demurrer to the defendants’ answer.
Section 11 of the general tax act of 1927 (Georgia Laws 1927, p. 99) is as follows: “Banks. Be it further enacted by the authority aforesaid, that no tax shall be assessed upon the capital of banks or banking associations organized under the authority of this State, or the United States, located within this State, but the shares of
It will be seen from what is stated above that the court, in passing upon the demurrer of the plaintiff to the defendants’ answer, held that the defendant could not attack any of the provisions of this section of the general tax act of 1927, but was estopped from doing so, because it had accepted a charter granted by the legislature of the State of Georgia. We can noj; agree with the court in holding, in effect, that the City of Moultrie was estopped from attacking that section of the act. It is true that the city had a charter granted by the legislature, but that charter had been granted before the passage of this tax act. Even if a city could not attack any of the provisions of an act passed prior to the granting of its charter which it had accepted, we do not think that it is estopped from attacking as unconstitutional acts which vitally affect it, passed subsequently to the granting and acceptance of the charter. To illustrate by an extreme example: Suppose that an act which by its caption purported to be an act to amend the charter of the City of A, the caption of which made no reference to any other subject, should be passed by the legislature of Georgia, but in the act there was included a section which vitally affected the City of B, and by its terms deprived the latter city of rights important and essential to the existence of that municipality, could it be said that the City
It follows from what we have said that the court erred in sustaining ground 6 of the plaintiff’s demurrer to the defendants’ answer. And in view of the fact that the questions there involved were of such a character as to enter into the consideration of the main and' leading questions in this case, whatever took place after the erroneous ruling upon this ground of the demurrer to the defendants’ answer was nugatory, and the case is remanded that the court may pass upon the defendants’ contention as to the unconstitutionality of those portions of the general tax act of 1927 which appear from the 15th paragraph of the defendants’ answer and the subsections thereof, and which are especially insisted upon in the defendants’ demurrer.
Judgment reversed.