138 Ga. 214 | Ga. | 1912
The railroad of the Georgia Railroad and Banking Company, a domestic corporation, traverses the County of Taliaferro. It claimed a charter exemption from taxation of its physical properties. The proper authorities of Taliaferro County entered into the following contract with attorneys for the collection of these taxes: “ Georgia, Taliaferro County. This contract made this August 1, 1905, between the Board of Commissioners of Roads and Revenues of said countjr, of the first part, and Samuel Ii. Sibley, J. A. Beazley, and Hawes Cloud, all of said county, of the second part, witnesseth, that said parties of the first part have this day employed said parties of the second part as attorneys at law to collect for said county any and all taxes to which said county may be entitled from the Ga. R. R. and Banking Co. or the lessees of said Railroad as back taxes, or in any way due said county, and agree to pay said parties of the second part 20 °/0 of the amount collected on the general claim for taxes, and 25% of the amount collected in proceedings especially against the Washington Branch of said Railroad; said attorneys to have no claim for said fees except on the amount which they may collect, being hereby authorized to proceed in such way as may seem best to them.” The attorneys collected the taxes, principal and interest,
The divergent contentions of the parties result from the construction given to the contract wherein the county authorities employed attorneys to collect certain taxes from the railroad company. The county’s contention is that the attorneys were employed to collect only the taxes which were due at the time of .the execution of the contract. The attorneys contend that their employment extended to the establishment of the railroad company’s liability to taxation, and the collection of all taxes anterior to the time that liability was legally established. The county authorities lay great stress on a literal interpretation of the contract, which they insist is plain and unambiguous that the only taxes the attorneys were engaged to collect were “back taxes” or taxes “in any way due said county” at the time of the contract, and insist that there is no language in the contract which would include taxes which would become “back taxes” at a future date. On the contrary the attorneys insist, that the language of the contract is to be interpreted in the light of its subject-matter and circumstances; that at the time the contract was made the railroad company, which for many years had operated a railroad through the county, had never paid any tax on its physical property within the county, claiming a charter exemption; and that the intention of the parties was to establish the taxability of the property and collect the taxes up to that time for the stipulated commission. “Courts, in the construction of contracts,” says the Supreme Court of the United States, “look to the language employed, the subject-matter, and the surrounding circumstances; and may avail themselves of the same light which the parties enjoyed when the contract was executed. They are accordingly entitled to place themselves in the same situation as the parties who made the contract, in order that they may view the circumstances as those parties viewed them, and so judge of the-meaning of the words and of the correct application of the language to the things described.” Nash v. Towne, 5 Wall. 689. It appears from the facts admitted in the stipulation of the
It will be seen that at the time of the employment of the attorneys the railroad company disputed all liability for taxes. The laws for the summary enforcement of tax levies are so explicit that counties do not usually employ attorneys to collect their revenue from taxes. Eailroad -taxes are collected by the comptroller-general, and the employment of special counsel indicates that the county authorities were concerned not so much with the collection of tax for any particular year as to establish the county’s right to annually lay a tax upon the physical property of the railroad company. The railroad company was not disputing with the county the sufficiency or propriety of the collecting machinery, or the amount of the tax, or the legality of its levy; it was setting up exemption from taxation. Hence the principal object of any litigation to be instituted by the attorneys, as a means to the collection of a tax, was to establish the right of the county to exact the tax. The pending litigation between the railroad company and the comptroller-general involved only the taxes of one year, and the county authorities were contracting in aid of the comptroller’s effort in this direction. The comptroller-general issued a fi. fa. for only one year, when he could have issued and simultaneously pressed the taxes for other years. These circumstances are persuasive that the subject-matter of the contract comprehended primarily the establishment of the taxability of the physical property. When that was established, it followed as a matter of course that unpaid taxes were to be regarded as back taxes to be collected by the attorneys under the contract. After it was settled that the railroad property was taxable, subsequent taxes would be assessed and paid by the railroad company in the ordinary and usual course, or, if the company was delinquent, then payment could be enforced by the usual summary process. But concede that another construction might be put upon the contract; that it was ambiguous. The attorneys acted on their construction of it. They were vigilant and energetic to obtain a decree assuring to their client an annual revenue from taxes to be laid on the railroad’s property. They were
