Green v. Calhoun , 204 Ga. 550 ( 1948 )

1. "Where the property subject to tax is such as is returnable annually to the tax receiver of the county, that officer shall assess the same at the valuation fixed in the annual returns, if satisfactory to him; if not, he shall within 30 days after receiving said returns, make an assessment of said property from the best information he can procure, and notify, in writing, the person or officer making the returns, who shall have the privilege within 20 days after receiving such notice, to refer the question of the true value to arbitrators, one to be chosen by himself and one to be chosen by the tax receiver, with power in the two so chosen to choose an umpire in case of disagreement, and their award shall be final. Said assessment, when completed and entered upon the tax digest, shall be adopted and used by the county boards of education or other school authorities authorized by law to levy taxes for school purposes in counties or school districts, in lieu of requiring separate returns or arbitrations for purposes of school taxation." Code, § 92-6804. "Within 10 days after the first day of April of each year the tax receiver of each county shall present the tax returns of the county for the current year to the county board of tax assessors created by this Chapter for the purpose hereinafter contemplated and provided." Code (Ann. Supp.), § 92-6902.

2. The Board of County Commissioners of Worth County, and not the Board of Tax Assessors, has jurisdiction over county finances and the levying and collection of taxes for county purposes (Code, § 23-904; Code, Ann Supp., § 2-7501), the authority and duties of the Board of Tax Assessors being prescribed in the Code, § 92-6911, as follows: "The board shall examine all the returns of both real and personal property of each taxpayer, and if in the opinion of the board any taxpayer has omitted from his returns any property that should be returned or has failed to return any of his property at a just and fair valuation, the board shall correct such returns and shall assess and fix the just and fair valuation to be placed on the property, and shall make a note thereof and attach the same to the returns. It shall be the duty of the board to see that all taxable property within the county is assessed and returned at its just and fair valuation and that valuations as between the individual taxpayers are fairly and justly equalized so that each taxpayer shall pay as near as may be only his proportionate share of taxes."

3. The evidence was sufficient to authorize the court to find that the increase of 25 percent on the valuations of realty on the returns of the petitioners and other taxpayers was not a process of equalizing such valuations, but was an unlawful and arbitrary attempt to provide additional revenue for educational purposes, and to grant an interlocutory injunction against the defendants from making up, compiling, or listing any report or digest incorporating or including therein any increased assessment or changes or alterations in the returns of the taxpayers of Worth County, and enjoining E. E. Flowers, as Tax Receiver of the said County, from transmitting to the State Department of Revenue or the Comptroller General or the Tax Collector of Worth County or any tax authorities of the county or State any report, list, or other compilation or digest including or incorporating therein any increase or change or alteration in the return filed with the Tax Receiver of Worth County by any taxpayer thereof.

4. To resort to arbitration under the provisions of the Code, § 92-6912, would be abortive and remediless, since the issue is not as to the correct valuations of the realty in question, but whether or not the Board of Tax Assessors acted without lawful authority in putting into effect a plan to systematically increase the returns on the realty, not in order to equalize the respective valuations of any taxpayers, but for the purpose of raising additional funds for educational purposes, as to which issue and legal question the board of arbitrators would be without authority to determine, and relief could be had only by a petition in equity. Columbus Mutual Life Ins. Co. v. Gullatt, 189 Ga. 747 (8 S.E.2d 38); Allied Mortgage Companies v. Gilbert, 189 Ga. 756 (8 S.E.2d 45); Gullatt v. Slaton, 189 Ga. 758 (8 S.E.2d 47); Gilbert v. Northwestern Mutual Life Ins. Co., 189 Ga. 766 (8 S.E.2d 43); Montgomery v. Suttles, 191 Ga. 781 (13 S.E.2d 781).

Judgment affirmed. All the Justices concur, except Atkinson, P. J., who dissents, and Bell, J., absent on account of illness.

No. 16376. OCTOBER 13, 1948. REHEARING DENIED NOVEMBER 18, 1948. STATEMENT OF FACTS BY DUCKWORTH, CHIEF JUSTICE. E. J. Calhoun, O. C. Flowers, Will Carter, and J. C. Champion as taxpayers, on behalf of themselves and others similarly situated, brought an action in the Superior Court of Worth County against D. L. Green, W. C. Manning, and C. H. Lee, individually and as composing the Board of Tax Assessors of Worth County, alleging in substance that the defendants had arbitrarily, illegally, and in excess of their powers, increased the just and fair returns of the petitioners and other taxpayers by adding thereto 25 percent of the valuations of their lands, but without increasing the valuations on their personalty, and seeking to enjoin them from compiling such assessments, filing or returning the same with the Tax Receiver of the county or other taxing authorities of the county or with the Comptroller General or the Revenue Commission, praying that the assessments increasing the valuations be declared null and void, and for other equitable relief that may be meet and proper. By amendment and order of the court E. E. Flowers, as Tax Receiver of the said county, was made a party defendant, and it was prayed that he be enjoined in the same respects as prayed against the other defendants.

The defendants answered, denying the material allegations of the petition, contending that no question of taxability was involved, but only one of valuation, and that an adequate remedy was available by arbitration under the Code, § 92-6912.

Upon the hearing, while there was testimony from the defendant that the returns of the taxpayers on realty had only been "equalized," and no increase added on personalty, since it was considered that the values returned were sufficient, the court was authorized to find the following: The petitioners and other taxpayers made returns of realty and personalty, but following a pre-existing custom, the matter of valuations was left to be fixed by the Tax Receiver. Subsequently one or more members of the Board of Education informally stated to members of the Board of Tax Assessors that the Board of Education was continuing to run in debt annually to the extent of about $41,000, and that the maximum limit of fifteen mills for the Board of Education would not provide sufficient funds with which to operate the schools and discharge the indebtedness; and it was requested that the valuations in tax returns be increased to afford sufficient funds to the Board of Education to meet its obligations. Thereafter, without any formal agreement or meeting between the two boards, the valuations of realty on the returns of the taxpayers were generally increased by 25 percent. Witnesses who testified for the petitioners admitted having received notice by mail of the increases in the assessments. They testified that, when they appeared before the Board of Tax Assessors at a formal meeting and inquired as to the cause of the increases they were informed in substance that the assessors did not contend that the original valuations were not fair and just, but contended that they needed to raise more money for the Board of Education and had decided to do so by increasing the valuations 25 percent. As testified by one witness, the assessors told him that the word "equalize" was a little misleading, that they were not trying to equalize the valuations, but had been notified to make $40,000, and they had agreed on a flat 25 percent overall. It was stipulated by the petitioners that none of the property was returned at its market value but at a percentage value which was fixed by the Tax Receiver.

The court entered an interlocutory order enjoining the defendants as prayed, and the exception here is to that judgment.