Irwin v. Pearson

51 S.E.2d 420 | Ga. | 1949

The petitioners sought cancellation of a city tax execution, and injunction against enforcement of a levy in pursuance of such execution, alleging that the assessment on which the execution issued for 1947 city taxes was illegal for stated reasons, and also in violation of the due-process clause of the State Constitution, and further alleging that the property levied upon had been included in other returns by the petitioners and assessments and demands made thereon by the city; but it not being alleged that the petitioners had offered to do equity by tendering any amount admitted to be due, the petition failed to set forth a cause of action, and the trial court did not err in sustaining the defendant's general demurrer on this ground. Mayor Aldermen of Savannah v. Fawcett, 186 Ga. 132 (2) (197 S.E. 253), and cases cited on p. 139; Clisby v. Macon, 191 Ga. 749 (2) (13 S.E.2d 772); Kent v. Alamo, 193 Ga. 445 (2) (18 S.E.2d 769); Behr v. Macon, 194 Ga. 334 (3) (21 S.E.2d 169).

Judgment affirmed. All the Justicesconcur.

No. 16437. JANUARY 11, 1949. W. L. Irwin and J. A. Donlon filed in Fulton Superior Court, against G. B. Pearson Jr., in his capacity as City Marshal of the City of Hapeville, a petition which alleged substantially the following: The defendant has levied certain process purporting to be a fi. fa. issuing from the office of the clerk of said city on described lands of the petitioners. The levy made purports to be in satisfaction of the city's execution against the lands and the petitioners for 1947 taxes, being based upon a purported assessment of unreturned property for taxation during the taxable year 1947. The city has authority under its charter to appoint tax assessors, but no such legally constituted board of assessors was appointed at any time to serve during the taxable years 1946 and 1947. The mayor and council of the city did designate three freeholders to compose a board, and that board purported to perform the functions of both tax assessors and a board of tax appeals. There are no provisions either in the charter of the city, nor in any of its laws and ordinances, nor in any rule or regulation of any board of tax appeals or board of tax assessors for any notice or opportunity to be heard to any delinquent taxpayer; and the assessment upon which the levy complained of was made was without any notice to petitioners and without affording any right to be heard with respect to tax liability or the fair valuation. The city was entirely without authority to impose the tax demanded in the manner sought, and the defendant marshal is without authority to make the levy complained of. The petitioners are not liable for the tax demanded, and aver that all of the property comprising the subject-matter of the demands now made was included in other returns and assessments against the petitioners on account of which they have received demands. The petitioners have no adequate and complete remedy at law, and are entitled to maintain this suit in equity, for the reason that the attempted collection of the tax is in violation of the due-process clause of the State Constitution as set forth in the Code. The petitioners prayed for: (a) process; (b) cancellation of the execution complained of; (c) injunction to prevent the defendant from taking further steps to enforce the execution; and (d) for general relief.

The defendant demurred upon the ground, among others, that there is no allegation of tender to the defendant of any specified sum admitted to be due by the petitioners. The exception is to a judgment sustaining the defendant's general demurrer and dismissing the action.