181 Ga. 814 | Ga. | 1935
Lead Opinion
Mrs. Ruby Fleeman Kirk filed a petition against J. L. Bray as tax-collector of Oglethorpe County, T. E. Watkins as sheriff, and others, to enjoin the levy of certain tax executions and to have the same canceled as clouds on her title. The defendants in their answer admitted that the taxes could not be collected at law, and filed a cross-petition asking that the liens be established and foreclosed in equity. The State of Georgia and Oglethorpe County, through their proper officials, intervened to recover their respective portions of the taxes, were made parties defendant, and adopted substantially the answer of the original defendants. The case was submitted to the judge on an agreed statement that the facts were as set out in the pleadings. They were substantially as follows: J. 0. Fleeman, father of Mrs. Ruby Fleeman Kirk, had for more than twenty-five years a life-estate in 282.92 acres of certain described realty in Oglethorpe County, and collected the rents and profits therefrom. Mrs. Kirk owned the remainder in fee, and upon the death of her father on July 19, 1930, she took possession of the said land and has been in possession since that time. For several years, including the years 1926 through 1930, J. C. Fleeman returned for taxes the land above mentioned, together with other land, making a total of 452 acres valued at $5424. The tax-receiver accepted the returns each year, and each year after the taxes became due and were not paid the tax-collector issued executions against J. C. Fleeman, in personam only, for the sum of $119.33 on the total return. No effort was made to levy any of these fi. fas. during the lifetime of J. C. Fleeman, but, after his death in 1930, the authorities of Oglethorpe County threatened to levy them on the land then belonging to Mrs. Kirk. On March 3, 1923, the life interest of J. 0. Flee-man was sold after being levied on for taxes due for the year 1921, and Mrs. Kirk bought in the life-estate at such sale. Subsequently Fleeman redeemed his interest in the land. The defendants in their answer admitted that they were not entitled to collect more than the pro rata amount of taxes actually due on the 282.92 acres in controversy, which they set for $74.67 for each of the five years. They alleged that no property of the estate of Fleeman could be found on which to levy the fi. fas., except about ten acres which were not of sufficient value to pay all of the taxes due. They admitted that there was no method of collecting the taxes at law, and asked that
The present case does not make necessary any opinion as to whether the action brought by Mrs. Kirk against the tax-collector and others in their official capacity is in effect a suit against the State, and whether, it can be maintained. The State and the County of Oglethorpe, through their proper officers, intervened in the suit, accepted it, and filed a cross-petition asking for certain affirmative relief. The record shows that they entered into a stipulation that the case be tried by the court without a jury and only on the pleadings. Mrs. Kirk sought to enjoin the tax-collector and others from levying on her property the fi. fas. which have been described, mad to have thean canceled as clouds on her title. The State and the Comity of Oglethorpe allege that they are without adequate remedy at law, aaid adanit that they are now powerless to collect the back taxes oai the property in pursuance of any statutory authority. This is the sole ground upon which they seek the jurisdiction of a court of equüy and upon which they pray that the court will frame a remedy. It is not alleged by Mrs. Kirk that the fi. fas. had actually been levied on her property, though she
In State v. W. & A. R. Co., supra, it was said: “It was a rule .at common-law that where a statute creates a right and provides a particular remedy for its enforcement, the remedy is generally conclusive of all common-law remedies. When this rule is considered in connection with the genius and spirit of our American institutions, its application to the collection of taxes, where adequate statutory remedy is provided, can not be doubted. A most distinctive feature of the constitution of the United States and of-this State is the division of the powers of government- into three separate departments, executive, legislative, and judicial. It was designed and intended that one department should not usurp the ordinary, functions of the others, but that all three should act in harmonious relation. So when the legislature authorizes a tax for governmental purposes and provides an adequate remedy for its collection by administrative officers, the necessary intendment is
It is conceded by the defendants in error that ho action can be maintained at law for the collection of the back taxes; but it is urged that the State has a general lien on the property, and that a court of equity should provide a remedy for the enforcement of the lien. In support of their contentions they cite the Code of 1933, §§ 3-105; 37-105; 37-1203, as to the office or function of a court of equity. It is, however, a prerequisite to the aid of a court of equity that some right must already exist in favor of the petitioner, as to which no provision has been made for its enforcement. Furthermore, “Equity is ancillary, not antagonistic, to the law; hence equity follows the law where the rule of law is appli
The difficulty of the State and Oglethorpe County as respects the collection of the back taxes in the present case is, not that there was not ample machinery under the statutes, but that the
Thus it is shown that under the legislative provisions the fee of Mrs. Kirk could not, in the absence of an assessment and execution sufficient to reach the remainder interest, be divested by a sale of the property. It is apparent that the State of Georgia and Oglethorpe County are, in effect, asking a court of equity to indirectly convert an in personam execution into an in rem execution and let the property be sold under the improvised or reconstructed character of the execution, in complete disregard of the absence of an actual supporting execution in rem. Stated otherwise, if the sheriff could, under the authority of the statute, sell only the life-estate which existed in the property, how could a court of equity enlarge the interest to be conveyed? A court of equity can not thus run counter to the law. The matter of collecting taxes, in the absence of statutory provision therefor, is beyond the jurisdiction of the judicial department of the government. It is solely the prerogative of the legislative department. “The power of taxation is legislative, and can not be exercised otherwise than under the authority of the legislature.” Meriwether v. Garrett, 102 U. S. 472, 501 (26 L. ed. 197). The
In Heine v. Levee Commissioners, 19 Wall. 655, 659 referred to in the Preston case, supra, it was said that the case of Eees v. Watertown “was much stronger than the one before us, and is unquestionably decisive of this. It is very clearly shown that the total failure of ordinary remedies does not confer upon the court of chancery an unlimited power to give relief. Such relief as is consistent with the general law of the land, and authorized by the principles and practices of courts of equity, will, under such circumstances, be administered. But the hardship of the case, and the failure of the mode of procedure established by law, is not sufficient to justify a court of equity to depart from all precedent and assume an unregulated power of administering abstract justice at the expense of well-settled principles.” It was further said: “The power we are here asked to exercise is the very delicate one of taxation. This power belongs in this country to the legislative sovereignty, State or National. In the case before us the National sovereignty has nothing to do with it. The power must be derived from the legislature of the State. So far as the present case is concerned, the State has delegated the power to the levee commissioners. If that body has ceased to exist, the remedy is in the legislature either to assess the tax by special statute or to vest the power in some other tribunal. It certainly is not vested, as in the exercise of an original jurisdiction, in any Federal court. It is unreasonable to suppose that the legislature would ever select a Federal court for that purpose. It is not only not one of the inherent powers of the court to levy and collect taxes, but it is an invasion by the judiciary of the Federal government of the legislative functions of the State government. It is a most extraordinary request, and a compliance with it would involve consequences no less out of the way of judicial procedure,
In Coca-Cola Co. v. Atlanta, supra, the petition was brought for the purpose of discovery as to the ownership of certain stocks, preliminary to an effort to collect taxes. It was held that the petition was good against demurrers, and that the court did not err in entering a decree for the discovery prayed. In Georgia Power Co.
Another assignment of error is that the court erred in not decreeing that the fi. fas. be canceled as clouds on the title of the petitioner. This is without merit. As shown in the foregoing part of the opinion, only a life-estate could be conveyed if the property were sold under the fi. fas., which were issued in personam only, and there does not now exist any life-estate since the death of J. C. Fleeman, and Mrs. Kirk’s title would be unaffected. The court-did not err in not decreeing that the fi. fas. be canceled.
The assignment of error that the court erred in not granting an injunction is also without merit. It is provided in the Code of 1910, § 1159 (Code of 1933, § 92-7801), that “When property is levied on under a tax fi. fa. issued either by the comptroller-general or tax-collector, it may be claimed by a third person and tried in the same manner as other claims are, except that the claimant shall give a bond and security for the eventual condemnation-money; and if found subject, such claimant and his sureties shall be in all respects liable as on an appeal bond.” Having an adequate remedy at law by the filing of a claim in the event an attempt be made to sell her property, Mrs. Kirk is not entitled to an injmietion. Campbell v. Drainage Commissioners, 156 Ga. 64 (118 S. E. 720); Harris Orchard Co. v. Tharpe, 177 Ga. 547 (170 S. E. 811); First National Bank v. Phoenix Life Ins. Co., 179 Ga. 74 (3) (175 S. E. 361). The court did not err in refusing the injunction sought in the present case.
Judgment affirmed as to the refusal to cancel the fi. fas. as clouds on title, and as to the refusal to grant an injunction, and reversed as to the decree that the property in question be sold for the payment of back taxes.
Rehearing
Movants argue (1) that the effect of the present decision is to leave the law in such shape that ad valorem taxes due on property assessed against a life-tenant insolvent except for the life-estate, who dies before the time for the collection of taxes, may not then be collected from any one; and (2) that the provision of the Code, § 92-110, that “Life-tenants, and those who own and enjoy the property, shall be chargeable with the taxes thereon,” does not bind the State, but is only binding between the parties, that is, between the life-tenant and the remainderman. Neither inconvenience nor loss of revenue can alter the construction of a law which is clear. In such a case courts can only declare the law as made by the proper co-ordinate branch of the government. It may be added that the ill effects apprehended by movants are not apparent to us. Moreover, the case does not present for decision the question of what is the proper procedure for the collection of taxes in a case like this, where the life-tenant dies leaving the taxes unpaid. To decide that question now would obviously be obiter. If, however, movants are correct in their second contention, as stated above, it must follow that contention (1) can not be sound. This court has not expressly decided whether the provision in the Code, § 92-110, as to life-estates is binding on the State. Code, § 102-109, Lingo v. Harris, 73 Ga. 30, and Brunswick v. King, 91 Ga. 522, 524 (17 S. E. 940), cited by movants, only indirectly bear on the subject. “The State is not bound by the passage of a law, unless named therein, or unless the words of the act should be so plain, clear, and unmistakable as to leave no doubt as to the intention of the legislature.” § 102-109, National Bank v. Danforth, 80 Ga. 55 (7 S. E. 546), dealt with the construction of the last sentence in § 92-110, with reference to the taxation of property held under a bond for title. It is stated by movants that the Code section was taken from National Bank v. Danforth, supra, was placed in the Code of 1895, and appears in subsequent Codes. It would seem (without deciding) that the ruling there made with reference to property held under bond for title would likewise apply to property held by a life-tenant with remainder over. The first headnote in that decision is as follows: “In taxing real property and collecting the taxes thereon, the public authorities may treat it as belonging
If we concede, as argued by movants, that the principles ruled in the case from which we have just quoted apply in the present case, then it must likewise be conceded that by proceeding as required by statute the tax could have been collected either from the life-tenant or the remainderman, or both. It would also follow that the State has its election in every instance whether to collect the taxes from the life-tenant or from the remainderman. However, that would not change the effect of the present decision. The taxing authorities elected to assess and collect the taxes from'the life-tenant, and can not again assess the property against the remainderman. The tax fi. fa., being in personam, without specifying any particular property, was ineffective to sell more than the life-estate. Had the tax-receiver at the proper time assessed the property against the remainderman, under the Code section the remainderman in that event could legally proceed against the life-tenant to collect from him whatever amount she paid for taxes. The property having been assessed against the life-tenant, and more than thirty days having elapsed, the tax-receiver could not assess it again, nor could any court for any reason confer that power upon him. Bohler v. Verdery, 92 Ga. 715 (supra.) As stated in the Bohler case, “The principles which authorize a court of equity to relieve against mistake have no application to the case. The tax-
Movants mention several cases which they state were overlooked by this court. They were not overlooked, but were carefully considered before the opinion was rendered, and in them nothing is found decisive of the question presented in the instant case. State v. Hancock, 79 Ga. 799, 801 (5 S. E. 248), was a claim case. The wife and daughters of the defendant in fi. fa., living with him, had stood by for years and allowed him to return the property as his own. Under such circumstances the tax-collector was right in issuing an execution in personam against him. The court said that if it should be held that the executions were invalid and that no return had been made, the tax-collector was in a position to assess it and place a double tax upon the property, and that the claimants would have to pay it or suffer the property to be sold.
The question decided in the first division of the opinion in Austell v. Swann, 74 Ga. 278, 281, was whether or not an apportionment of annual taxes paid by a life-tenant upon dower land could be allowed between the life-tenant and the reversioners, upon any principle of law or equity. A demurrer to the petition was sustained. Movants quote the following: “It is contended, as we think with irresistible force, that a neglect to pay the burdens
The motion for rehearing is denied.
Hpon motion to reconsider the denial