180 Ga. 689 | Ga. | 1935
Tax executions were issued by the tax-collector of Laurens County against T. B. Hicks for state and county taxes for the years 1927 and 1928. The City of Dublin also issued an
The case was tried upon an agreed statement from which the following facts appear: The execution constituted a lien upon several other tracts of land and some personal property, all located in this State and returned for taxation by Hicks in the year 1927. The execution was transferred to the Interstate Bond Company at the request of Hicks, the tax debtor, and in pursuance of a contract in which for certain considerations the bond company agreed to pay the amount of the execution, obtain a transfer thereof, and then to refrain from enforcing the execution for a stipulated period of time. This period had expired long before the execution was levied upon the hotel property. Prior to the date of the levy, Morris, the claimant tendered to the bond company, as transferee, the portion of the tax applicable to this property according to value, and demanded a release of such property from the lien of the execution, which demand the bond company refused. In making such demand Morris was relying upon.the act of August 25, 1931 (Ga. L. 1931, p. 122), providing that any party having an interest in property returned or assessed with other property for taxation shall be allowed to pay the taxes assessed against any one or more pieces of the property in which he is so interested, and obtain a release as to such property; and also upon the act of March 24, 1933 (Ga. L. 1933, p. 50), amending the act of 1931 so as to provide that it
A statute which changes or affects the remedy only and does not destroy or impair vested rights is not unconstitutional as impairing the obligation of a contract, although it may be retroactive and in changing or modifying the remedy the rights of parties may be incidentally affected. Bacon v. Savannah, 105 Ga. 62 (31 S. E. 127). Numerous authorities to this effect might be cited. The question for decision, then, is whether the acts of 1931 and 1933 had the effect of impairing any vested right of the bond company. Under the law as it existed before the passage of these statutes, the lien of the tax execution could be enforced against any property of the defendant in fi. fa. Civil Code of 1910, §§ 1140, 3333; Decatur County Building & Loan Asso. v. Thigpen, 173 Ga. 363, 364 (160 S. E. 387); Federal Land Bank v. Farmers & Merchants Bank, 177 Ga. 505 (3) (170 S. E. 504). Under section 1145 of the Code of 1910, the transfer of the execution was authorized, and the transferee was given “the same rights as to enforcing said execution and priority of payment as might have been exercised or claimed before said transfer.” The transfer was made in behalf of the State and the county, and amounted to a’contract between the State and the transferee. The transferee also held a contract with the tax debtor confirming the lien as between themselves. A contract between the State and an individual is protected by the constitutional prohibition here invoked. Winter v. Jones, 10 Ga. 190 (4) (54 Am. D. 379); Fletcher v. Peck, 10 U. S. 87 (3 L. ed. 162). In 12 C. J. 965, § 522, it is stated: “By the great weight of authority, a lien once acquired under existing law is regarded as a vested property right which may not be impaired by subsequent legislation.” Such is the rule in this State. In Waters v. Dixie Lumber Co., 106 Ga. 592 (32 S. E. 636, 71 Am. St. R. 281), this court held that “When the lien of a materialman has, under the terms of the statute, become fixed and secured, such lien is then a
There is no merit, in the contention that the transferee can not question the constitutionality of the acts of 1931 and 1933, without showing that the application of these statutes would result in loss or damage to it. The transferee had to show only that a right vested in it by the contract would be impaired. Winter v. Jones, supra; Virginia-Carolina Chemical Co. v. Floyd, supra. If the claimant had sought to obtain an equitable marshaling of assets, the question of actual damage might have been material, with the burden of proof, however, seemingly on the claimant himself. But the case is not one in equity. The claimant sought merely to enforce certain statutes which the transferee contends are invalid. Its interest in the subject-matter was such that it could raise the constitutional question; and we agree that such statutes are invalid as applied to the antecedent transfer of the execution. The constitutional question was not raised in First National Bank v. Phœnix Mutual Life Ins. Co., 179 Ga. 74 (175 S. E. 361). On the general subject see the following recent decisions by the Supreme Court of the United States: Home Building Asso. v. Blaisdell, 290 U. S. 398 (54 Sup. Ct. 231); Worthen Co. v. Thomas, 292 U. S. 426 (54 Sup. Ct. 816); Worthen Co. v. Kavanaugh, U. S. (55 Sup. Ct. 555); Louisville Joint Stock Land Bank v. Radford, U. S. (55 Sup. Ct. 854).
Judgment affirmed.