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noting "the sovereign right of the State to tax as declared by the constitution"
Summary of this case from Ex parte StateOpinion
16061.
FEBRUARY 10, 1948.
Declaratory judgment. Before Judge Thomas. Bacon Superior Court. October 11, 1947.
Eugene Cook, Attorney-General, A. J. Hartley, Assistant Attorney-General, John A. Smith Jr., Andrew J. Tuten, J. E. Hyman, and Rubye G. Jackson, for plaintiffs in error.
Charles P. Noles and Harry D. Reed, contra.
1. The word "property" in the Code, § 92-5712, providing for a release of security from liens for taxes upon payment as therein prescribed, where the security is assessed with other property, means both real and personal property.
2. The provisions of the statute are not violative of article 4, section 1, paragraph 1 of the Constitution of 1877 (Code, § 2-2401), as to the sovereign right of the State to tax. Nor is the statute in conflict with article 7, section 1, paragraph 1 of the Constitution of 1945 (Code, Ann. Supp., § 2-5401).
3. Under the facts alleged in the petition and stipulated as true, a proper case for a declaratory judgment was presented, and the court did not err in overruling the demurrers and entering judgment declaring that the petitioner was entitled to a release of his security, certain real estate, from liens for State and county ad valorem taxes for the year 1945 upon making payment as offered and as prescribed in the Code, § 92-5712.
No. 16061. FEBRUARY 10, 1948.
Federal Land Bank of Columbia filed in the Superior Court of Bacon County, Georgia, a petition against B. H. Aldridge, as tax collector of the said county, and Glenn S. Phillips, as State Revenue Commissioner of the State of Georgia, alleging the following: The petitioner has outstanding a large number of loans in various counties of this State, which are secured by liens on farm lands. In 1934 it made a loan to G. A. Carter on the security of 206 acres, more or less, of lots of land Nos. 81, 104 and 105 in the fifth land district of Bacon County, and took from him a deed to secure the said loan, the deed being duly recorded, and the loan being still outstanding. The said Carter failed to pay the county ad valorem tax on the said land for the year 1945, and an execution for such tax and for ad valorem taxes on personal property owned and returned by him was issued by the defendant, B. H. Aldridge, as tax collector, and is outstanding and unsatisfied, constituting a lien against the petitioner's security, and it may be levied at any time on the said security and the security be offered for sale to enforce the said execution. The amount of the ad valorem tax assessed against the petitioner's security is $9, and the amount of the ad valorem tax assessed against the said personal property of G. A. Carter, included in the execution aforesaid, is $43.06. The petitioner has offered to pay the tax on its security with interest to date of payment and a release fee of fifty cents. Such offer was made to B. H. Aldridge, as tax collector of Bacon County, with the understanding that upon payment of the tax it would be his duty to issue a receipt showing such payment and to execute a release of the land from the lien of the execution aforesaid. The said Aldridge, as tax collector, has refused to accept payment of the tax on the land aforesaid, with interest and the release fee, on the ground that no other real estate is returned and assessed by or against G. A. Carter with the land on which the petitioner holds a lien, and that the petitioner is without legal right to pay the tax on said land and have the same released from the execution without also paying the tax on the personal property returned by G. A. Carter and included in the execution; the said Aldridge, as tax collector, asserting that he is acting under the authority and direction of the State Revenue Commissioner who, acting through his agent, B. E. Thrasher, Chief Clerk of the Property and License Tax Unit of the Department of Revenue, has advised him, in substance, that he can refuse to issue a release under the offer as made by the petitioner. The petitioner is advised and believes that it has a legal right to pay the tax on its security and have it released from the execution without also paying the tax on the personal property, and its effort to do so and the refusal of B. H. Aldridge, as tax collector, to accept the payment offered and to release the land from the execution constitute an actual controversy as to which the petitioner is entitled to a declaratory judgment by the court. The controversy involves uncertainty and insecurity with respect to the rights of the petitioner arising out of a large number of its loans in various counties of this State. The prayers were: (1) For process; (2) that the court render judgment declaring that the petitioner has a right to pay the tax on the land hereinbefore referred to, without paying the tax on the personal property, and to have the land released from the lien of the tax execution issued against G. A. Carter, leaving it as a lien only against his personal property.
The defendants each filed demurrers on the following grounds: (1) no cause of action is set forth against the defendant; (2) the petition does not set forth an actual controversy entitling the petitioner to a declaratory judgment; (3) the petition does not set forth a cause of action for equitable relief.
The defendants also filed answers, which as amended denied that the petitioner was entitled to the relief sought, and contending that the Code, § 92-5712, upon which the petitioner relied was unconstitutional, in that it violated article 7, section 1, paragraph 1 of the Constitution (Code, Ann. Supp., § 2-5401), and the provisions of the Constitution as appearing in the Code, § 2-2401, before the 1945 amendment to the Constitution, being the same as the provisions of article 7, section 1, paragraph 1, supra, for the reason that, where a tax execution for ad valorem taxes covers only one piece, parcel, or tract of real estate, and it is shown that a release executed by the tax collector would seriously impair or extinguish the lien for taxes, it restrains the sovereign right of the State to tax as declared by the Constitution. They prayed that it be declared by the court that the tax collector did not have the right to release the real estate as sought by the petitioner; that the act of 1931 (Ga. L. 1931, p. 122) as amended by the act of 1933 (Ga. L. 1933, p. 50), codified as § 92-5712, has no application when a tax execution covers only one piece, parcel, or tract of real estate; and that the said act of 1931 as amended (Code, § 92-5712) be declared unconstitutional if applied to a release as sought by the petitioner.
When the case came on for a hearing, the defendants, on October 4, 1947, admitted that the allegations of fact in the petition were true; and it was agreed between the parties that the judge of the court hear and determine all issues in vacation without a jury. On October 11, 1947, the court rendered judgment overruling the demurrers, and declaring that the petitioner was entitled to the relief sought, the judgment being based "on the stipulation and finding that G. A. Carter returns no real estate in Bacon County other than the land covered by the plaintiff's deed to secure debt, and that no other land in Bacon County is assessed as the property of G. A. Carter."
The exception here by the defendants is to that judgment.
1. The statute, Code, § 92-5712, under authority of which the petitioner seeks to have the security of its loan released from the lien for ad valorem taxes provides that "The owner or the holder of any equity, lien, or interest in or on property returned or assessed with other property for taxes shall be allowed to pay the taxes assessed against any one or more pieces of such property" under the conditions stated. (Italics ours.) One of the issues here is whether or not the word "property," which we have italicized, should be construed to refer only to real property or to both real and personal property. The Code itself furnishes a guide to the construction of such an act, it being provided in § 102-103 that "The following meanings shall be given to the following words in all statutes, unless a different meaning is apparent from the context: . . Property includes real and personal property." See also Fears v. State, 102 Ga. 274, 279 ( 29 S.E. 463). We are bound, therefore, to construe the statute here involved as referring to both real and personal property wherever the word "property" appears, unless a different meaning is apparent from the context. Examining closely the entire language of the statute, we find nothing to authorize any limitation of the meaning of property as there used to only real property. There is nothing confusing, uncertain, or ambiguous in the language. If the intent of the legislature was, as counsel for the plaintiffs in error argue, to provide for a release from the lien of taxes only where, after a given release, there was other real estate from which the tax due on personal property could be realized in the event such property could not be found and levied upon, such an intent can not reasonably be gathered from the statute. Whatever disadvantage may result to the taxing authorities, it is plain that the legislature was providing some relief to one occupying the status of the lending corporation, and in doing so it used the word "property" without in any wise by other language or context limiting its meaning. The argument that "other pieces of property" must necessarily refer to real estate alone can not be upheld without writing into the statute something that was not put there by the legislature and which is not "apparent from the context." In these circumstances the rule of construction, many times announced by this court, is that, "If the legislature does plainly and distinctly declare its intention, the act is not open to construction; it needs, and can receive none. It stands self-interpreted, and courts have nothing to do but to enforce it. The exclusion of interpretation, where none is needed, may be stated to be, notwithstanding the absurdity which it involves, the first rule of construction." Neal v. Moultrie, 12 Ga. 104, 110; Atkins v. State, 154 Ga. 540, 542 ( 114 S.E. 878); Georgia Casualty Co. v. Jones, 156 Ga. 664, 666 ( 119 S.E. 721); Standard Oil Co. v. State Revenue Comm., 179 Ga. 371, 375 ( 176 S.E. 1). As stated in Floyd County v. Salmon, 151 Ga. 313, 315 ( 106 S.E. 280), "Where the act is plain, unambiguous, and positive, and is not capable of two constructions, the court is not authorized to construe the act according to the supposed intention of the legislature." It not being apparent from the context that the word "property" as used in the statute was intended to mean other than both real and personal property, it is, therefore, construed as the Code, § 102-103, directs, and is held to mean both real and personal property.
2. But counsel for the plaintiffs in error insist that, if the statute is to be construed as we have done, it is violative of article 4, section 1, paragraph 1 of the Constitution of 1877 (Code, § 2-2401), and article 7, section 1, paragraph 1 of the Constitution of 1945 (Code, Ann. Supp., § 2-5401). In support of this view it is urged that where, as here, a tax execution covers only one piece, parcel, or tract of real estate, and it is shown that a release thereof by a tax collector would seriously impair or extinguish the lien for taxes, the sovereign right of the State to tax as declared by the Constitution is thereby restrained. We are unable to see wherein the statute has the effect claimed. It in no wise restrains or restricts the right to tax, and in the present case assessments have been made on both the real and the personal property here involved, and execution has been issued with the respective amounts of the taxes shown therein. The tax on the land on which the petitioner has a lien is paid as fully, when the proceedings authorized by the statute have been completed, as if collected directly from the defendant in execution. It may, of course, result in the taxing authorities being without any realty upon which to levy if the personal property be secreted, and thus the lien of the State and county to that extent become ineffective, but the Constitution does not purport, in article 7, section 1, paragraph 1 (Code, Ann. Supp., § 2-5401), or elsewhere, to protect the lien of a tax. If the lien here be rendered impotent as to the real estate, it will merely have suffered the fate of many liens for taxes, as witness the numerous instances where taxes have been uncollectible after seven years from the date of issuance of an execution or from the time of the last entry upon the execution by the proper officer. See Code, § 92-7701; Georgia Railroad Bkg. Co. v. Wright, 124 Ga. 596 (20) ( 53 S.E. 251); Sharpe v. Waycross, 185 Ga. 208, 214 ( 194 S.E. 522); Suttles v. Dickey, 192 Ga. 382 (1), ( 15 S.E.2d 445). The statute is not unconstitutional for any reason assigned.
3. The plaintiffs in error contend that a case for a declaratory judgment is not here presented, because the petitioner has an adequate remedy by mandamus, injunction, or affidavit of illegality. It has been held by this court, however, that though there exists a remedy, either in law or equity, a petition for declaratory judgment will lie "when there be some fact or circumstances which necessitate a determination of disputes, not merely for the purpose of enforcing accrued rights, but in order to guide and protect the petitioner from uncertainty and insecurity with respect to the propriety of some future act or conduct which is properly incident to his alleged rights, and which future action without such direction might reasonable jeopardize his interest." Mayor c. of Athens v. Gerdine, 202 Ga. 197 ( 42 S.E.2d 567); Georgia Marble Co. v. Tucker, 202 Ga. 390 ( 43 S.E.2d 245). The allegations of fact, which were stipulated as true, call for the application of the rule of law quoted above. The existence of the tax execution and the dispute as to the validity and meaning of a law relating to the controversy between the parties make a declaratory judgment desirable, not merely to enforce accrued rights, but to guide and protect the petitioner from uncertainty and insecurity as to future acts or conduct incident to its alleged rights. It follows that the trial court did not err in overruling the demurrers and in entering judgment declaring that the petitioner was entitled to a release of its security from liens for State and county ad valorem taxes for the year 1945 upon complying with its offer.
Judgment affirmed. All the Justices concur, except Bell, J., absent on account of illness, and Wyatt, J., who took no part in the consideration or decision of this case.