Stewart v. Collier ( 1892 )

Collier presented his petition for an injunction, on the ground that the act of August 14, 1891, relative to the appointment of boards of equalization of tax returns, was unconstitutional, etc. The defendants demurred, and the cause was heard upon the demurrer. The judge held that the act was unconstitutional, and that plaintiff was entitled to the relief sought; and ordered injunction to issue. The tax-collector excepted.

The petition alleged, in brief: The act of August 14, 1891, purports to create a board of equalization, and under it the commissioners of Fulton county appointed such board. As one of the tax-payers of the county, petitioner under oath gave in his property for taxation as by law provided, giving in land in the county outside the limits of Atlanta at $81,500, and city property at $55,000, which valuations were just and fair, and any excess above them wrongful, illegal and oppressive. Afterwards the hoard of equalizers assumed to review petitioner’s return, and raised it upon the city property to $75,000 and upon the property outside the city to .$265,000. The board has handed to the tax-receiver instructions directing him to assess and enter for taxation petitioner’s property, at the increased figures mentioned, and it is the intention of the tax-receiver to ■enter such assessment and turn it over to the tax-collector for collection. The assessment will be a cloud on petitioner’s title, and the danger of subjecting his property to levy and sale a wrong and injury, not as a tax but a mere assumption based on no valid law. The .act in question is in violation of paragraph 1, section 2, article 7; paragraph 1, section 4, article 1; and paragraph 2, section 4, article 1, of the constitution, in this: The act in the first section thereof contains an exception as follows : “ Provided that the provisions of this act shall not be applied to any county which has a board of equalization under a special act.” At the date of the act Richmond and Chatham counties, being the counties next largest in population and taxable wealth to Pulton county, had in existence, each of them, a hoard of equalization under special act passed relative to said counties, and thereby were excepted out of the operation of the act of August 14, 1891, by reason of which exception that act is not uniform as required by the sections and paragraphs of the constitution above quoted, requiring such uniformity, the act of August 14, being of itself a law of a general nature and a law for the levying and collection of taxes of petitioner and other citizens. The act is also unconstitutional in this: Prior to its passage there were general constitutional laws in operation for the whole State, providing a complete system for the assessment, levy and collection of the taxes of all the people of the State, and the enactment of the act of August 14, applying to a part only of the counties of the State, is the enactment of a special law in such case, and thereby violative of paragraph one, section four, article one of the constitution. Further, the creation of said board by that act affected the rights of petitioner and the tax-payers of Fulton county, and under the paragraph mentioned, the legislature is inhibited from varying the said general law without his and their consent, which has not been given. The board of equalizers is wholly unauthorized by law, and their attempt to increase the assessment of his property and that of other tax-payers is utterly void, and it is the duty of the tax-receiver to disregard it, but he refuses to do so. The prayer is, that the tax-receiver be enjoined from increasing the return, or entering it on his digest and turning it over to the tax-collector increased in the manner stated, and that the tax-collector be enjoined from collecting the increase; that the act of August 14, 1891, be adjudged unconstitutional, etc.

J. M. Terrell, attorney-general, and Candler &■ Thomson, for plaintiff in error. ITillyer & Lee, contra.

The demurrer was upon the grounds that there was no equity in the petition, nor any cause of action or ground for judicial interference with the proceeding.