Summary
In Derrick v. Campbell, 219 Ga. 795, 798 (136 S.E.2d 381), this court held that an equitable petition to enjoin the collection of taxes did not state a cause of action because it failed to allege tender of taxes due, and an analysis was made of several cases decided prior thereto.
Summary of this case from Register v. LangdaleOpinion
22421, 22447.
SUBMITTED MARCH 9, 1964.
DECIDED APRIL 9, 1964.
Injunction. Walker Superior Court. Before Judge Hicks, Emeritus.
Shaw, Stolz Fletcher, Norman S. Fletcher, for plaintiffs in error.
Robert E. Coker, Gleason Brown, contra.
1. "`The general rule is that no injunction will lie to interfere with the collection of taxes. Code of 1933, § 92-7901.' Candler v. Gilbert, 180 Ga. 679, 682 ( 180 S.E. 723). `Before enjoining such taxation and incurring the possibility of embarrassing the progress of county government, the law and the facts must be such as to clearly require such action.' McCrory Co. of Georgia v. Board of Commissioners of Fulton County, 177 Ga. 242, 243 ( 170 S.E. 18)." Kent v. Murphey, 207 Ga. 707 ( 64 S.E.2d 49); Hutchins v. Williams, 212 Ga. 754 ( 95 S.E.2d 674).
2. The petition in the present case was filed on November 27, 1963. The petitioners do not allege that they have paid or tendered the amount of the tax due on the tax returns made by them, and under the allegations of the petition their taxes were due and payable.
(a) "He who would have equity must do equity, and give effect to all equitable rights of the other party respecting the subject-matter of the suit. Civil Code (1910), § 4521 [now § 37-104]. One seeking relief from excessive tax levies, but admitting, either expressly or by necessary implication, that he owes part of the tax covered by such executions, must pay or offer to pay the amount of the taxes admitted to be due, in order to obtain the relief sought." Peoples Credit Clothing Co. v. City of Atlanta, 173 Ga. 653 (1) ( 160 S.E. 873); Candler v. Gilbert, 180 Ga. 679, 680-681, supra; Pierce Trading Co. v. City of Blackshear, 182 Ga. 649 ( 186 S.E. 721); Holloway v. De Vane, 212 Ga. 182 ( 91 S.E.2d 350); Trust Investment c. Co. v. City of Marietta, 216 Ga. 788 ( 119 S.E.2d 568).
3. The petitioners having failed to allege that they have paid or tendered the taxes due, their petition failed to state a cause of action.
SUBMITTED MARCH 9, 1964 — DECIDED APRIL 9, 1964.
H. C. Derrick, Jr., and some 46 other named persons, as "tax-payers, residents, citizens and property owners in Walker County, Georgia," filed their equitable petition against Albert Campbell, individually, and as sole Commissioner of Roads and Revenue of Walker County; named persons, individually and as members of the Board of Tax Assessors of Walker County; William Crowe, individually and as Tax Receiver of Walker County; and J. Miller Pickell, individually and as Tax Collector of Walker County. The gist of their action is summarized by the allegations that the "Tax Assessors of Walker County, Georgia, and the other defendants, acted and are acting without lawful authority in putting into effect a plan to systematically increase without uniformity the taxpayers' returns for 1963," and that the "Assessors in addition to placing arbitrary and fanciful values on personal property as aforesaid, failed to equalize taxes on personal property between individual taxpayers, or to tax personal property of any nature at its just and fair valuation, and have violated the uniform taxation clause of the Constitution of the State of Georgia, the equal protection clause of the Constitution of the United States and of the State of Georgia, ..." It was further alleged that: The tax assessors violated stated constitutional provisions by the manner and method of applying the homestead exemption. The notice of the increased assessments was not given in the manner required by law. "That despite the fact that no legal notice of the change in the returns of such taxpayers was ever given as required by law, their property valuations have been increased with an increase in taxes assessed against them, the Tax Digest made up and completed accordingly, and the tax collector is proceeding with the collection of taxes in accordance with said Digest... That the Receiver entered said assessments and exemptions upon the tax digest of Walker County for 1963 and prepared, made up and completed the same and the taxes of the taxpayers for 1963 have been computed and entered thereon and are in the hands of the Collector for collection ... said assessments constitute liens upon the properties of the petitioners and clouds upon the title to their properties and upon those of other taxpayers of Walker County, Georgia."
The prayers were: (a) for process; (b) for rule nisi; (c) that all assessments on the returns of the taxpayers of Walker County and the petitioners be declared illegal, null, and void; (d) that the tax digest be declared illegal, null, and void, and be vacated; (e) that all assessments of the taxpayers' property be declared null and void and be vacated; (f) that the Tax Collector of Walker County be temporarily restrained and permanently enjoined from collecting or receiving any taxes upon the assessments for the year 1963; (g) that the defendants and particularly the Tax Collector of Walker County be temporarily restrained and permanently enjoined from issuing any tax executions against properties of the petitioners or other taxpayers for failure to pay taxes assessed against them in 1963; (h) that the commissioner be temporarily restrained and permanently enjoined from seeking to have tax valuations of the property of taxpayers systematically increased for the purpose of raising revenue only; and (j) for other relief.
On the hearing the trial judge denied an interlocutory injunction and in the main bill of exceptions the petitioners except to this judgment. The cross bill of exceptions assigns error on the overruling of certain general and special demurrers to the petition.
The ruling made in headnote 2 is not in conflict with the decisions of this court in cases where the petition showed that taxes were not due. In Green v. Calhoun, 204 Ga. 550 ( 50 S.E.2d 209), the petition was filed on May 31, 1948, and on the same date the defendants were enjoined from completing their assessments, and returning their findings to the tax receiver and the State Revenue Commissioner. No taxes could have been due at the time the petition was filed.
In Hutchins v. Howard, 211 Ga. 830 ( 89 S.E.2d 183), the petition was filed on March 31, 1955, long before assessments were completed and taxes for the year 1955 were due.
In Hutchins v. Williams, 212 Ga. 754, supra, the petition was filed on July 21, 1956, and it was prayed that the defendants be enjoined from completing their findings of value assessments, and from filing them with the taxing authorities of the county and the State Revenue Commissioner. Clearly no taxes could have been due under the allegations of the petition.
In Barrett v. Slagle, 214 Ga. 650 ( 106 S.E.2d 908), the petition was filed on August 1, 1958. It was alleged that the board of tax assessors had completed their work, and that unless enjoined, the county commissioner would make a tax levy upon the property of the petitioners in the amount fixed by the tax assessors (the levy referred to being the fixing of a rate of taxation for county purposes for the year 1958). No taxes could have been due at the time of the filing of the petition.
In Kight v. Gilliard, 214 Ga. 445 ( 105 S.E.2d 333), the petition was filed on May 23, 1958, and at the time of the filing of the petition no taxes could have been due under the applicable rules of law. Kight v. Gilliard, 215 Ga. 152 ( 109 S.E.2d 599), is a reappearance of the same case.
In Colvard v. Ridley, 218 Ga. 490 ( 128 S.E.2d 732), the petition was filed on September 20, 1962. It was alleged that unless enjoined, the tax assessors would complete the tax digest of the county for 1962 and send it to the State Department of Revenue. It was prayed that they be enjoined from compiling assessments of taxable property and from filing them with the State Revenue Commissioner. Since under the law the tax collector is prohibited from collecting any taxes until the digest is filed with the State Revenue Commissioner ( Code § 92-5601), no taxes were due in Colvard v. Ridley, supra.
In Brooks v. Carter, 216 Ga. 836 ( 120 S.E.2d 332), the petition was not filed until December 20, 1960, but prior to the filing of the petition the petitioners tendered to the tax collector the amount of taxes due on the returns made by them.
The decision in City of Macon v. Ries, 179 Ga. 320 ( 176 S.E. 21), has two dissents, but if it were a full bench decision, it would have to yield to the older decision of Peoples Credit Clothing Co. v. City of Atlanta, 173 Ga. 653, supra.
The decision in Pullman Co. v. Suttles, 187 Ga. 217 ( 199 S.E. 821), is not in conflict with the rulings here made, for in the Pullman case the petitioners had not made any return, and did not admittedly owe any tax, but sought to enjoin a wholly illegal tax. See Trust Investment c. Co. v. City of Marietta, 216 Ga. 788, supra.
Judgment affirmed on the main bill of exceptions; reversed on the cross bill of exceptions. All the Justices concur.