187 Ga. 217 | Ga. | 1938
Lead Opinion
1. One against whom an unlawful exaction in the. form of a tax is sought to be made, by virtue of unconstitutional statute or procedure, is entitled to an injunction to restrain its collection, if adequate remedy at law by affidavit of illegality is not provided; and it is not necessary that he first tender any part of the wholly illegal tax, or resort to arbitration under invalid or inapplicable statutes, or await the levy of a tax execution. Harris Orchard Co. v. Tharpe, 177 Ga. 547 (2) (170 S. E. 811, 88 A. L. R. 1212); City of Atlanta v. Jacobs, 125 Ga. 523 (2), 527 (53 S. E. 534), and cit.; McIntyre v. Harrison, 172 Ga. 65, 72 (157 S. E. 499), and cit.; Wright v. Union Tank Line Co., 143 Ga. 765 (85 S. E. 994); Lane v. Unadilla, 154 Ga. 577 (2) (114 S. E. 630); Southwestern Railroad v. Wright, 68 Ga. 311 (2), 320; Wright v. S. W. R., 64 Ga. 783, 789; Vincent v. Poole, 181 Ga. 718, 720 (184 S. E. 269); 61 C. J. 781, § 1005.
2. “A county, being a corporation created by and existing under the laws of this State, can exercise only such powers as are conferred on it by law; and when it undertakes through its constituted authorities to exercise the power of taxation in any given manner, a clear and manifest legal right to do so must appear.”
3. “The assessment of a tax is action judicial in its nature, requiring for the legal exertion of the power such opportunity to appear and be heard as the circumstances of the case require. . . Somewhere during the process of the assessment the taxpayer must have an opportunity to be heard, and . . this notice must be provided as an essential part of the statutory provision, and not awarded as a mere matter of favor or grace.” A denial of this right, as under former laws relating to assessments by the comptroller-general, prior to amendment now providing an opportunity to be heard, is a failure to afford due process of law within the intention of the 14th amendment of the Federal constitution, and of art. 1, par. 3, of the State constitution (Code, § 2-103). Central of Ga. Ry. Co. v. Wright, 207 U. S. 127, 138, 141, 142 (28 Sup. Ct. 47, 52 L. ed. 134, 12 Ann. Cas. 463), and cit.; Turner v. Wade, 254 U. S. 64 (41 Sup. Ct. 27, 65 L. ed. 134); City of Macon v. Ries, 179 Ga. 320, 323 (176 S. E. 21), and cit.; Lane v. Unadilla, supra; Shippen Lumber Co. v. Elliott, 134 Ga. 699 (3), 702 (68 S. E. 509). As to the amendment of the original law relating to State-comptroller assessments, and correcting the former infirmity, see State v. Western & Atlantic R. Co., 136 Ga. 619, 627 (71 S. E. 1055); Gaulden v. Wright, 140 Ga. 800, 802 (79 S. E. 1125); Code, §§ 92-6002 et seq., 92-6103, 92-6802, 92-6803.
4. While chapter 92-69 of the Code, creating in the several counties of the State a county board of tax-assessors, and prescribing their duties with reference to omitted or undervalued properties in the county, makes provision, in §§ 92-6911 et seq., for notice, hearing, and arbitration in behalf of taxpayers desiring to contest assessments made against them, where tax returns have been made or should have been made to the tax-receiver of the county (Code, §§ 92-6902, 92-6911), yet § 92-6901 provides that “nothing in this chapter shall apply to those persons, firms, or corporations who are required to make their returns to the comptroller-general.” § 92-6915 contains a like exception. These two latter sections, therefore, expressly exclude any one in the group mentioned from
5. The Code, § 92-5902, which embodies as part of the general law certain provisions in the general tax act of 1927 (Ga. L. 1927, p. 97) thus re-enacted in the adoption of the Code (Ga. L. 1935, p. 84), provides in terms that “all persons or companies owning or operating railroads . . or sleeping-cars in this State . . shall be required- to malee annual lax returns of all property located in this State to the comptroller-general; and the laws now in force providing for the taxation of railroads in this State shall be applicable to the assessments of taxes on the businesses above stated.” See also the general tax act of 1935. Ga. L. 1935, p. 65. Following the sections of the Code (§§ 92-2601 et seq.) relating to returns, assessments, and payments of taxes to the comptroller-general on rolling stock and other properties of railroads, the Code, § 92-2605, also embodying part of the general tax act of 1927 (§ 9 (2), Ga. L. 1927, p. 97), further provides that: "Each nonresident person or company whose sleeping-cars are run in this State shall be taxed as follows: ascertain the whole number of miles of railroad over which sleeping-cars are run and the entire value of all sleeping-cars of such person or company, then tax such sleeping-cars at the regular tax rate imposed upon the property in this State on a valuation based on the proportion to the .entire value of such sleeping-cars that the length of lines in this State over which such cars are run bears to the length of lines of 'all railroads over which such sleeping-cars are run. The returns shall be made lo the comptroller-general. . . If the taxes herein provided are not paid, the comptroller-general shall issue executions against the owners of such cars, which may be levied by the sheriff of any county in this State upon the sleeping-car or cars of the owners who have failed to pay the taxes.” These sections requiring “companies owning or operating . . sleeping-cars in this State” and “non-resident” companies “whose sleeping-cars are run in this State” to make their returns to the comptroller-general, such a company necessarily falls within the express exception of the Code, § 92-6901, where an assessment is made or attempted to be made by a county board oE tax-assessors as to its sleeping-cars within a county for county taxation. As to such an assessment by a county board, therefore, that section and other sections of
6. Under the preceding rulings, the application by the county authorities of the tax-assessment statutes to the assessments by the county board of tax-assessors on sleeping-cars of the petitioner in Fulton County failed to afford it “due process of law;” and for this reason, while the court correctly denied the motion to dismiss the action, it was error to refuse an injunction and to dissolve the previous restraining order.
7. Under the foregoing rulings, it is unnecessary to determine whether other statutes and procedure attacked by the petition aTe unconstitutional or invalid on the grounds urged; or what, if any, powers may exist in the comptroller-general under the statutes mentioned or other laws to assess sleeping-cars for county taxation, as in cases of railroad rolling-stock under the Code, §§ 92-2701 et seq., relating to railroad companies; or whatj if any, powers
Judgment reversed on the main bill of exceptions; affirmed on the cross-bill of exceptions.
Rehearing
ON MOTION FOB REHEARING.
The gist of this decision was that the assessments for county taxes by the board of tax-assessors of Fulton County against the “daily average” of sleeping-cars in the county during the years involved were invalid against the sleeping-car company, since the assessments were made under the Code, chapter 92-69, which expressly excepts corporations “required to make their returns to the comptroller-general;” and since the sleeping-car company, being such a corporation, was thus deprived of the right to notice, hearing, and arbitration, therein afforded to other taxpayers, and consequently was denied “due process of law,” in contravention of the Federal and State constitutions. The motion for rehearing contends that this court overlooked that part of the' stipulation in this case in which it was agreed between the parties that during the years in question there was an “average” of 34 sleeping-cars “in the territorial limits of Fulton County from day to day,” including January 1, and that a “fair valuation” of such cars was $340,000; that the previous assessments by the county board of tax-assessors being in accord with such a present stipulation, any hearing to the company thereon was needless; and that. the company can not in this case raise the question of “due process of law,” because it was held by the United States Supreme Court in St. Louis-San Francisco Ry. Co. v. Middlekamp, 256 U. S. 226 (41 Sup. Ct. 489, 65 L. ed. 905), that the taxed corporation, having returned figures which the authorities accepted as a basis for the tax imposed, could not afterward complain that it had been .taxed disproportionately. In that case it was said: “The objection most insisted upon in this court was that the statute made no provision for a hearing; and that although the plaintiff applied to
But even if the Middlekamp case could be taken as supporting the contention of the tax-officers as to “due process,” we can not agree that the mere stipulation that there was a “daily average” of sleeping-cars of a certain value in the county amounted to an
In Georgia R. &c. Co. v. Wright, 124 Ga. 596, 603, 605, 615-618 (53 S. E. 251), as in the present ease, the principal question as to “due process” related to “liability for the tax sought to be enjoined,” and whether “shares of stock in a foreign railroad company, whose line of road lies outside this State, are . . taxable in Georgia.” It was there held that the due:process clause was not violated by former statutes, since amended, as to assessments by the comptroller-general. In reversing that decision, the United
It is further contended by the movants that this court overlooked the stipulation, not only that “the assessment made by the Fulton County authorities . . was not made on information certified by the comptroller-general,” but also that the assessment was not “made wholly on information obtained from the office of the comptroller-general.” It does not appear, however, how this stipulation could aid the movants. On the controlling question of due process of law, there is nothing to indicate how the use by the county of any such outside information affected the failure of the procedure to afford the sleeping-car company a right to be heard as to the taxability of the property and the validity of the assessments, or how the use of any such outside information rendered the assessments any more valid than if the information had been obtained wholly from returns to the comptroller-general. This is especially true under the decision next considered, on which the movants rely.
Finally, it is contended that this court overlooked the case of Georgia Railroad &c. Co. v. Hutchinson, 125 Ga. 762 (2) (54 S. E. 725), and that such case requires a different decision. It was there held: “The county authorities of any county adopting the provisions of [the school-district tax act of 1905, Ga. L. 1905, p. 425] may levy the tax authorized thereby upon the property of railroad companies, the assessment thereon Toeing based on the returns made to the comptroller-general. The county authorities may obtain a certified copy of such returns from the comptroller-general ooi demand, to be used in the assessment and levy of the tax.” (Italics ours.) That case involved the essential question whether, under the then existing laws, and under the school-district tax act there involved, a county could levy and assess against a railo-oad company a tax based wholly on data obtained from a certified copy of a return made by the company to the comptroller-general, where there was no express provision in the school-district tax act as to the assessment and collection of the tax. In that case the