71 Ga. 24 | Ga. | 1884
The Savannah, Florida and Western Railway Company filed its bill in Ware superior court March 5th, 1883, against Morton, tax collector, et al., setting forth therein that the sheriff had levied an execution for state and county taxes for the year 1882, upon certain of its property in Ware county; that, under the acts of the legislature, said company was required to return all of its property for taxation to the comptroller general, and to pay taxes on the same to him; that returns as required by law were made by the company to the comptroller general, covering all of its property, including the property on which the so-called tax sought to be enjoined was assessed, for the year 1882; and that taxes due on all the company’s property, including the property on which the so-called tax was assessed, were paid to the comptroller general; that the company, under its charter and the charter of the Atlantic and Gulf Railroad Company — the rights, privileges and immunities of which the Savannah, Florida and Western Railway Company possessed — -was subject only to a limited taxation; that, although this limited taxation was subject to repeal by the legislature, it had never been repealed, so far as cities and counties were concerned; that the tax act of 1874 had made the property of railway companies subject to taxation by the state, and the state only; that the so-called taxes for which executions had been levied by the sheriff of Ware county were assessed without authority of law; that a cloud would be cast on the company’s title to the property levied on if it was sold by the sheriff under the so called tax execution sought to be enjoined, and that irreparable injury would be done if a restraining order was not granted.
Injunction was prayed against said tax collector and
The defendants filed an answer and. plea, in which they set up that the executions sought to be enjoined were issued for state and county taxes due by the company on property in Ware county, real estate laid off by the company into town lots and held for sale by the company to employes of the company, and to others who would build upon the same, and was not property used by the company for purposes connected with the prime object of tlie incorporation, to-wit, the building and maintaining of a railroad.
The hearing of tlio motion for injunction was continued, and came on to be heard at Brunswick on May 9th, 1883. Complainant’s solicitors, before the motion was heard, showed to Judge Mershon a letter received from the comptroller general of the state of Georgia on May 7th, stating that he, the comptroller general, had written to the tax collector of Ware county to recall they?, fa. sought to be enjoined, and to stop any further proceedings in the case, and to notify Chisholm & Erwin accordingly. Complainant’s solicitor stated in his place that this letter was in reply to one written by Chisholm & Erwin, complainant’s solicitors, to the comptroller general, on May 3,1883, for a certified copy of the complainant’s tax returns for the year 1882, which lie, complainant’s solicitor, desired to uxe on the .hearing of the motion for inj unction. Complainant thereupon made a motion that Judge Mershon should grant an order refusing to hear the motion for injunction, on the ground that the comptroller general, by the action indicated in said letter, had obviated the necessity of hearing the motion for injunction. The judge refused to grant such an order. The complainant thereupon moved that the hearing of the motion be postponed until the tax collector of Ware county could be heard from, which motion
The hearing of the motion for injunction then proceeded on bill and answer. After argument heard, said judge refused the motion for injunction. Within the time limited by law, the complainant tendered its bill of exceptions, assigning as error:
(1.) The refusal of Judge Mershonto grant an order refusing to hear the motion for injunction, on the ground that the comptroller general, by the action indicated in his said letter, had obviated the necessity of hearing motion for injunction.
(2.) In not granting a postponement of the hearing of the motion for injunction.
(3.) In refusing to grant the injunction as prayed in the bill.
So that, even if the state tax had not been paid, the mode for its return and collection, under the act of 1874, had not been followed in this case; and therefore it was illegally imposed and was' being illegally collected by the tax collector of the county. And therefore the injunction should have been granted as to the state’s part of the tax, whether it had been returned or not to the comptroller general and paid to him. This will become more apparent when it is considered that the act of 1874 authorizes a treble tax to be imposed by the comptroller, on failure of the company to return any property.
These are questions which will be before the court below on the hearing of this case, unless, as intimated, the company may itself be willing to adjust the county tax,
What we now decide is, that the-injunction should have been granted until the hearing, that all these issues might then be regularly determined on the trial in open court, unless settled. That courts will interfere to stop illegal state taxation, see 59 Ga., 805, and other cases following. That the interference by the courts with corporations, such as municipalities and counties, never was prohibited, see 27 Ga., 357 and following cases.
How far this court has gone on the subject of municipal and county taxation of railroad property since the act of 1874, see City of Albany vs. Savannah, Florida and Western Railroad Co., and County of Houston vs. Central Railroad Co., this term.
It is well that the act of the legislature at its last session has settled all trouble for the future on these points, and hereafter these questions cease to be practical. Acts of 1882-3, p. 39.
Judgment reversed.