29 S.E.2d 175 | Ga. | 1944
Lead Opinion
1. Tax receivers and tax collectors have no vested rights in commissions for the collection of taxes until the taxes have been actually collected.
(a) The General Assembly, by legislative act, may repeal or relieve a taxpayer of a tax due the State or a subdivision thereof, if the act repealing or relieving the tax applies to all people of a class alike.
(b) A taxpayer thus relieved from the payment of a tax is, therefore, not liable to a tax receiver or tax collector for commissions that would have been due had the tax been collected, when the General Assembly, by legislative act, relieved the taxpayer against the payment of such tax, even though a fi. fa. therefor had been issued and levied on the property of the taxpayer, but sale thereunder had been restrained by order of court in an action by the taxpayer contesting liability for the tax, and pending this litigation the act relieving against the tax was enacted.
After the act of the legislative (Ga. L. 1943, p. 243) was enacted and approved, and while the case was pending and previous to the trial, the defendants amended their answer, alleging that said act was unconstitutional in so far as it applied to Claude Clements and Martin Clements, as tax collector and tax receiver respectively, in that it would impair vested rights already accrued, and would amount to taking their property without due process of law, as they were entitled to commissions on all taxes collected.
On the trial of the case, the material allegations of the petition were proved. In fact they were admitted. The trial judge, upon motion, directed a verdict in favor of the plaintiff, and entered a decree declaring the assessment and execution null and void, and enjoining the defendants as prayed. The defendants' motion for new trial was overruled, and error is assigned on that judgment and on the exceptions pendente lite to the overruling of the demurrers. (After stating the foregoing facts.) The plaintiffs in error in their brief, in discussing the direction of the verdict, after stating there was no basis for controversy as to whether the property was grossly undervalued, say: "But even if the question of gross undervaluation had been in dispute, it would have been a jury question, and the court would have had no right to decide it as a matter of law against the tax receiver and tax collector." This statement is correct. Since the petition raised the question that the value of the property as fixed by the tax receiver was excessive and out of proportion to the value placed upon the property of other taxpayers of Walker County, it follows that there was no error in overruling the general demurrer under the law as *299 it existed at the time the ruling was made on October 27, 1942, that date being previous to the passage of the act of the legislature approved February 11, 1943 (Ga. L. 1943, p. 243). The special demurrers, on examination, are found to be without merit.
The defendant in error in its brief abandons the constitutional attack, made in its petition, on the act of 1918, under which the tax receiver purported to act in making the assessment. Therefore we are now called upon to pass upon the validity of the act of 1943 (Ga. L. 1943, p. 243), in so far as the same denies to the tax collector and the tax receiver the right to collect their commissions on the taxes assessed by the tax receiver previously to the passage of the act as involved in the instant case. The act of 1918, set out in the Code, §§ 92-6701 et seq., as here applicable, provides that the tax receiver, in a case where the property owner grossly undervalues his property in his tax return, shall notify such taxpayer of his delinquency, requiring that a return shall be made thereof within twenty days, and upon the taxpayer's failure or refusal to do so, the tax receiver shall assess such property for taxation from the best information he can obtain as to its value. This was the procedure followed by the tax receiver in the present case.
The act of 1937 (Ga. L. 1937, p. 517), amending the then existing law (Ga. L. 1913, pp. 123, 125) with reference to tax assessments, placed the duty upon the county board of tax assessors to receive and inspect tax returns laid before them by the tax receiver, and "if in the opinion of the board any taxpayer has omitted from his returns any property that should be returned, or has failed to return any of his property at a just and fair valuation, the board shall correct such returns and shall assess and fix the just and fair valuation to be placed on the property and shall make a note thereof and attach the same to the returns." Code, § 92-6911.
It is apparent that the duties and authority of the tax receiver, under the provisions of the act of 1918 (Ga. L. 1918, p. 232, Code, §§ 92-6701 et seq.), and the duties and authority of the county board of tax assessors, under the provisions of the act of 1937, are almost identical. The act of 1943 amended chapter 92-67 of the Code of Georgia, this being the chapter which imposes upon the tax receiver the duty in respect to delinquent taxpayers above referred to by adding thereto the following: "Provided, further, if the county board of tax assessors has previously passed upon *300 the assessment of this same property for the years involved, then any reassessment of this property heretofore or hereafter made by the tax receiver under this chapter, shall be void." And by adding a new section as follows: "In all cases where additional or deficiency assessments are made, or have heretofore been made, by county tax receivers or tax commissioners as provided in said chapter, such assessments or additional assessments shall be presented to the board of tax assessors of the county wherein such assessment is made, and such board of tax assessors shall by majority thereof determine, amend or disapprove such assessments in writing." It will be observed that the purpose of this act was to fix and define a final authority in fixing such tax assessments, and to remove the confusion and uncertainty of the finality of such assessments theretofore existing under the terms of the acts of 1918 and 1937.
The tax receiver and tax collector attack the retrospective character of this law as it operates to prevent the collection of their commissions on the amount of tax set forth in the execution that was issued and levied before the act of 1943 was enacted. They contend that they have a vested right in the commissions on the tax represented by the execution which had been levied that can not be destroyed or impaired by legislative act. The law fixing compensation of tax receivers and tax collectors for the collection of State and county taxes denominates such compensation as "commissions." Code, §§ 92-5301 et seq. Webster defines commissions in the sense here used as "the compensation accruing to the agent or factor; usually a percentage of the value handled by him." "`Commissions' is a word without technical meaning, but, when used to express compensation for services rendered, it usually denotes a percentage on the amount of moneys paid out or received. . . `Commissions' within statute providing that county collector in counties under township organization shall be allowed `commission' of two per cent. on railroad taxes, means compensation of two per cent. payable from tax collected." 7 Words and Phrases, 817. The Code, § 92-8002, provides that "Tax collectors shall be allowed a fee of 50 cents for issuing tax executions; but no tax collector, sheriff, or constable shall receive costs on said executions, unless the same shall be collected from the defendant." When two counties are engaged in litigation over the question as to which is entitled to collect any particular tax, the law postpones payment of *301 commissions to the tax receiver and tax collector until after the tax has been actually collected and it has been determined which county is entitled to the tax. Code, § 92-6224. Therefore the intention of the legislature clearly appears to have been that tax receivers and tax collectors are entitled to commissions only on such taxes as are actually collected. As applied to tax collectors, the law in this respect is definite. Code, § 92-5304.
There can be no question about the right of a State to waive liens or taxes in behalf of itself or its subdivision, so long as the waiver applies to all persons alike. Tyner v. Winslett,
Judgment affirmed. All the Justices concur, except Duckworth,J., who dissents; and Jenkins, P. J., absent on account ofillness.
Dissenting Opinion
I dissent from the judgment of affirmance because in my opinion the act of 1943 (Ga. L. 1943, p. 243) is unconstitutional as applied to the tax receiver and the tax collector of Walker County, as contended by them, in that it violates the provision of the constitution (Code, § 2-302), that "no . . retroactive law . . shall be passed," my reasons being set forth in my dissenting opinion in State Highway Department
v. Bass,