138 Ga. 524 | Ga. | 1912
I. C. VanDuzer filed his petition against W. H. Irvin, chief of police of the City of Elberton, praying for a mandamus absolute to compel the defendant to accept and return to the proper court for trial an affidavit of illegality to a municipal tax fi. fa. which .the defendant was seeking to enforce, and to enjoin the defendant, pending the hearing and determination of his petition for mandamus, from further proceeding with the fi. fa. The
But it does not follow that the levying officer who is proceeding to enforce á tax fi. fa. must accept and return to the proper court every so-called affidavit of illegality. The averments of the affidavit of illegality must distinctly disclose that the taxpayer either is not liable at all, or, if liable for any amount, the extent of the disputed liability must be made to appear.
The facts set up by the plaintiff in his affidavit of illegality in this case were insufficient to form an issue. He is in error as tc the validity of section 17 of the act as to the assessment of property by assessors. The act specifically provides for the appointment of tax assessors, who are to value property subject to taxation, whether given in by the owner or not, and that the taxpayer shall be given notice of the assessment 'and an opportunity to be heard before the assessment shall become final. He is thus given due process of law. McWilliams v. Tallapoosa, 137 Ga. 283 (73 S. E. 510). He is also in error as to the applicability of the act approved August 13, 1910 (Acts 1910, p. 22). This act provides for the method of assessing and collecting taxes where no adequate provision is made in the act authorizing the tax, or in the general law, for giving the taxpayer notice and opportunity to be heard as
It is alleged that certain items entering into the budget of expenses, of the City of Elberton, and'for which the tax was levied, did not constitute a legal indebtedness of the city. The affidavit does not undertake to say that the amount of the fi. fa. represents his part of that indebtedness, nor do the averments of the affidavit furnish any data as to what his proportionate part of the alleged illegal indebtedness would be. Indeed, no effort is made to do this. If municipal authorities include in a tax levy items of expense for the payment of which no tax can be legally levied, a taxpayer in his own behalf, as well as for other taxpayers, may-enjoin the levy of the tax until it is purged of illegality. But when tho municipal charter provides for a defense by affidavit of illegality against the enforcement of a fi. fa. for a particular amount, and the taxpayer does not attack the legality of the entire levy, but only a certain amount thereof, in order to make the remedy available he must directly state, or allege facts from which it may be inferred, the exact amount of the illegal tax which the municipality is undertaking to collect. Otherwise no issue can be joined as to the proper amount due by the taxpayer. For the sake of the argument, let us admit that some or all of the items were debts which could not be legally collected, and that the complaining taxpayer’s share of them was but a trifle as compared with the execution levied against him; if he really owed a part of the taxes for which the execution issued, it would be his duty under the general law (Civil Code, § 6287) to pay that which is due, in order to contest that which is not due. If it is impracticable to do this, a taxpayer in such case may proceed in equity to restrain the municipality from paying the illegal debts, or from assessing any taxes to pay the same. The affidavit of illegality being insufficient in law to raise any issue, the sheriff properly refused to accept the same, and there was no error in refusing the mandamus absolute.
Judgment affirmed.