Shewmake Bro. v. Dominy , 147 Ga. 577 ( 1918 )

Hill, J.

(After stating the foregoing facts.) Section 1211 of the Civil Code of 1910 provides that it shall be the duty of the tax-collector “to search out and ascertain, as far as possible, all polls and professions, and all taxable property not returned to the receiver or not found in his digests.” And section 1206 prescribes as the form of oath to be taken by tax-collectors, in part, as follows: “I will search out and make a true return of all defaulters, polls, professions, and all taxable property not found on the tax-receiver’s digest, or not returned to the clerk of the superior court by the fifteenth of August,” etc. Section 1055 provides: “When the owner of property has omitted to return the same for taxation at the time and for the years the return should have been made, such owner is required to do so for each year he is a delinquent, said return to be made under the same laws, rules, and regulations as existed during the year in default.” Section 1057 is as follows: “When the omitted property is of that class which should have been returned to the tax-receiver of the county, the said tax-receiver shall notify in writing such delinquent, requiring that he shall make a return thereof within twenty days.” Section 1059 declares: “If the delinquent as provided under section 1057 refuses to return his property after notice given him, it shall be the duty of the tax-receiver to assess such property-for taxation from the best information he can obtain as to its value for the years in default and notify such delinquent of the valuation, which shall be final, unless the taxpayer raises the question that it is excessive, in which event the further procedure shall be the same as provided by law when the value of returned property is arbitrated.” Section 1097 declares: “Bach return shall be scrutinized carefully by the tax-receiver, and if in his judgment he shall find the property embraced in the return, or any portion of it, returned below its value, he shall assess the value at once or within thirty days thereafter.” And section 1098 provides: “If such assessment is not made by the receiver instanter, he shall give the taxpayer notice of his assessment, and in either ease it shall be the taxpayer’s privilege to have it left to three disinterested persons, one of whom he shall select, the other shall be selected by the receiver, and these two shall select a third if they disagree, a majority of whom shall fix the assessment.” And section 1113 provides: “Beceivers and collectors are required to receive the returns and to collect the taxes thereon for former years, when any person is in default, which taxes shall be assessed according to the law in force at the time the default occurred, and shall be so specified in the digest.”

From reading the foregoing sections and considering them together, it becomes obvious that upon failure of the taxpayer to make his returns to the tax-receiver of the county, as required by law, it is the duty of the tax-collector to search out all the taxable property not returned to the receiver or found on his digests, and to assess it for taxation under the same laws, rules, and regulations which were of force during the year in which the default occurred. Provision is also made for notice to the defaulter, arbitration in case of disagreement as to the valuation of the property assessed, etc.; and this affords due process of law. VanDuzer v. Irvin, 138 Ga. 524 (75 S. E. 649). In the present ease notice was given to the taxpayer of the default, and in answer thereto it made its returns, brit placed a valuation on its property so low that the tax-collector declined to accept it. Whereupon the collector assessed the property at a higher valuation than had been returned by the taxpayer. No demand for arbitration was made by the taxpayer, as provided by statute; but on the contrary an agreement was reached between the tax-collector and the taxpayer, by the terms of which the latter was to pay, and did pay, a certain amount of the taxes due on the assessment in cash, the balance to be paid at stated periods. The deferred payment was not made, and tax fi. fas. were issued and levied upon property of the taxpayer, which was advertised for sale; and the present suit is to enjoin the sale on the ground that the fi. fas. are void because the tax-collector had no authority to proceed in the manner indicated. We think it is clear from the foregoing sections of the code that the tax-collector was within the law and within his rights when he took the steps indicated to collect the taxes due on the property and in default. Under these circumstances the court was right .in dissolving the restraining order and in refusing an injunction.

There is no merit in the contention that the assessment for taxation of the notes which were taken for the purchase-price of certain land as the property of the plaintiff, and the further assessment for taxation of the land itself in the possession of the vendee, constituted “double taxation.” See National Bank of Athens v. Danforth, 80 Ga. 55, 64 (7 S. E. 646).; Bank of the University v. Athens Savings Bank, 107 Ga. 246 (33 S. E. 34); Georgia Railroad Co. v. Wright, 125 Ga. 589, 593, 594 (54 S. E. 52).

Judgment affirmed.

All the Justices concur, except Fish, C. J., absent, and Atkinson, J., dissenting.