186 Ga. 132 | Ga. | 1938
John B. Fawcett, with other citizens and taxpayers of the City of Savannah, filed a suit in equity against the mayor and aldermen of the city, the marshal, and the city tax-assessors,. to enjoin the defendants from enforcing tax executions issued against the plaintiffs and levied upon their property; to restrain the board of tax-assessors from continuing in the year 1937 and in future years the assessing of real property at different proportions or percentages of value from that applied to personal property; and for other relief. The defendants filed a general
A section of the charter of the City of Savannah providing that the mayor and aldermen are authorized “to make such assessments and lay such taxes on the inhabitants of said city, and those who hold taxable property within the same, and those who transact or offer to transact business therein, as said corporate authorities may deem expedient for the safety, benefit, convenience, and advantage of said city, and may enforce the pajunent of such assessments and taxes in such manner as said mayor and aldermen may prescribe” (Code of 1863, § 4-756), was assailed in the petition as being in violation of the last-mentioned clauses of the State and Federal constitutions, in that it does not' provide for any notice or hearing. Stated ordinances were attacked for similar reasons, and also because they do “not provide for any appeal from any assessments except to the same board of assessors who have already assessed the property.” For all of the reasons mentioned, the plaintiffs alleged that the assessments and the executions based thereon were absolutely void and “constitute a cloud upon the titles to said property and other properties of petitioners.” The plaintiffs also alleged “that said levy upon the several lots of land and improvements is excessive and void in that defendants’ advertisement covers several pieces of property owned by the same person, any one piece of which would sell for more than the amount of the execution against such person respectively, [and] because said lots and improvements are of values respectively which as shown by the assessed value placed by said city’s- board of tax-assessors is greatly in excess of the amount of the tax levy and execution under which the said marshal is now proceeding.” The petition did not show the year for which the executions were issued, or the amount of any execution. It did not show which of the several lots, or whose lots, were of the values greatly in excess of the executions. If the plaintiffs or any of them are the owners, or have been the owners, of any personal property since 1932, the petition did not expressly disclose the fact. Paragraph 11 of the petition was as follows: “The discrimination made by the Mayor and Aldermen of the City of Savannah and said board of tax-assessors in not assessing all property within the territorial limits of said city at a uniform rate of their value makes it impossible for petitioners to know just what amount the true and just taxes
The parties will be referred to according-to their position in the court below. It is contended by the defendants that the court erred in overruling the general demurrer, for the following reasons: The plaintiffs did not tender any amount as taxes .due to the city, nor did they exhaust their legal remedies before seeking relief in a court of equity. The plaintiffs are guilty of laches, and do not come into equity with clean hands. It is contended by the plaintiffs that in view of the unlawful discrimination against real estate the assessments and executions were void, and that in such case no tender is necessary. As to the pursuit of legal remedies, they insist that the charter provisions and ordinances of the City of Savannah as to assessing property for taxation are unconstitutional and void, because of their failure to provide for any notice or hearing; also that in such alleged case of discrimination as to values of different classes of property the hearing which is usually afforded to a taxpayer on the question of excessive valuation would not be applicable. They take issue with the defendants on the legal questions whether the petition shows upon its face that they have been guilty of laches or have failed to come into equity with clean hands. Finally, it is insisted that in some instances the levies made by the marshal were excessive, and that this fact alone should afford a cause of action. It is our opinion that the petition shows upon its face that the plaintiffs have been guilty of such laches as to bar their claim for injunction to restrain the tax sales for alleged discrimination, and also that the petition is fatally defective, as to this and other phases, for the want of a
The discriminatory practice as alleged in the petition is not defended by the city. The following authorities would appear to condemn it, and some of them will be found to discuss the remedy. Yakima Valley Bank v. Yakima County, 149 Wash. 552 (271 Pac. 820); Spokane & Eastern Trust Co. v. Spokane County, 70 Wash. 48 (126 Pac. 54, Ann. Cas. 1914B, 641); Coombes v. Coral Gables, 124 Fla. 374 (168 So. 524); Cummings v. Merchants National Bank of Toledo, 101 U. S. 153 (25 L. ed. 903); Stanley v. Albany County Board of Supervisors, 121 U. S. 535 (7 Sup. Ct. 1234, 30 L. ed 1000). In support of their contention that the provision of the charter and the ordinances of the City of Savannah relating to the assessing of property for taxation are unconstitutional, the plaintiffs have cited the following cases: Shippen Brothers Lumber Co. v. Elliott, 134 Ga. 699 (3) (68 S. E. 509); Swinson v. Dublin, 178 Ga. 323 (2) (173 S. E. 93). These decisions may or may not answer the question. On the general subject, see Wadley Southern Railway Co. v. State, 137 Ga. 497 (2) (73 S. E. 741); City of Sandersville v. Bell, 146 Ga. 737 (2) (92 S. E. 218); City of Macon v. Anderson, 155 Ga. 607 (3) (117 S. E. 753); City of Valdosta v. Harris, 156 Ga. 490 (2-a) (119 S. E. 625); McGregor v. Hogan, 153 Ga. 473 (112 S. E. 471); Simmons v. Newton, 178 Ga. 806 (174 S. E. 703); McGregor v. Hogan, 263 U. S. 234 (44 Sup. Ct. 50, 68 L. ed. 282); Pittsburgh &c. R. Co. v. Bachus, 154 U. S. 421 (14 Sup. Ct. 1114, 38 L. ed. 1031); Farncomb v. Denver, 252 U. S. 7 (40 Sup. Ct. 271, 64 L. ed. 424). On the question of clean hands, while the plaintiffs5 ownership of personal property and their participation in the alleged scheme do not affirmatively appear from the petition, fatal presumptions against the. plaintiffs might perhaps arise in regard to these matters, in view of the silence of the petition in reference thereto. Be that as it may, and without intending an intimation
With reference to the relief sought, the petition may be subdivided as follows: (1) It seeks to enjoin the proposed tax sales, for two reasons: (a) discrimination in assessments, and (b) excessive levies by the city marshal. (2) It seeks to end by injunction the alleged discriminatory practice. These several phases will be dealt with in the following discussion, though not in the exact order stated.
We will consider first the question of laches. The plaintiffs are citizens and residents of the City of Savannah. The petition was filed in May, 1937. The plaintiffs alleged that “for many years past, to wit: 1932 to 1936, both inclusive,” and also for the year 1937, the city tax-assessors have intentionally, habitually, and systematically adopted the practice of assessing real property at from sixty to one hundred per cent, of its fair market value; while at the same time they have allowed owners of personal property to return this kind of property at a lesser proportion of its value, varying from 33% per cent, in case of stocks of merchandise to as low as 10 per cent, on the class of property known as intangibles. In the absence of allegations to the contrary; it is fair to assume that the plaintiffs were thoroughly aware of this practice during all of these years, and yet neither did nor attempted to do anything about it. Wolfe v. Georgia Railway & Electric Co., 124 Ga. 693 (53 S. E. 239); Krueger v. MacDougald, 148 Ga. 429 (96 S. E. 867). In the meantime they have enjoyed the benefits of the municipal government as provided from funds supplied by the generality of the taxpayers. The petition alleged that about 1100 other taxpayers are in a situation similar to that of the plaintiffs, but these would compose only a small percentage of the property owners in a city like Savannah. The plaintiffs were not remediless in the meantime. They could have protested in some way, and could have petitioned the authorities to abandon the illegal practice. Code, § 2-124. Whether or not a suit instituted solely for the purpose of restraining a continuation of the discriminatory practice might have constituted an available remedy (cf. Atlanta Title & Trust Co. v. Tidwell, 173 Ga. 499 (3), 160 S. E. 620, 8 A. L. R. 735), it would have been as good in 1932 as in 1937. If injunction was not a remedy, it would seem to follow that man-
On the question of laches, it is immaterial that the assessments made against the plaintiffs’ property may be unconstitutional and
It is not contended that the City of Savannah is without any authority whatever to assess and collect taxes from its citizens; nor, upon a proper construction of the petition, can it be said to present any contention that the values placed upon the plaintiffs’ property are within themselves excessive. The real basis of the complaint is that the plaintiffs as owners of real estate are about to suffer from discrimination as between the different classes of property. What they are seeking to obtain is parity, and in this view they should at least have tendered amounts equal to the taxes which would have been due upon their real estate if it had been assessed at the lowest proportion of value which the board of assessors applied to personalty, and which according to the petition was ten per cent. These amounts would have been readily ascertainable. He who would have equity must do equity, and under this rule the plaintiffs alleged no sufficient excuse for their failure to make a tender on the basis indicated. City of Waycross v. Cowart, 164 Ga. 721 (3) (139 S. E. 521); Peoples Credit Clothing Co. v. Atlanta, 173 Ga. 653 (160 S. E. 873); Candler v. Gilbert, 180 Ga. 679, 680 (180 S. E. 723); Pierce Trading Co. v. Blackshear, 182 Ga. 649 (186 S. E. 721); Peoples National Bank of Lynchburg v. Marye, 191 U. S. 272 (24 Sup. Ct. 68, 48 L. ed. 180). This ruling will apply to the petition, not only as it seeks an injunction to restrain enforcement of the tax executions, but also as it relates to a continuation of the alleged discriminatory practice. The two objectives of the petition are so interdependent that the plaintiffs are in duty bound to do equity in regard to both, under the facts of the case. Code, § 37-104.
Judgment reversed.