Allied Mortgage Companies Inc. v. Gilbert , 189 Ga. 756 ( 1940 )

1. It was not the intention or the legislature in enacting the tax-equalization act (Ga. Laws 1913, p. 123), to vest in boards of arbitrators provided by section 6 of said act (Code, § 92-6912) the power lodged by existing statutes in the superior courts to adjudicate questions of taxability of property assessed for taxation. Such a board of arbitrators is without legal authority to entertain or determine questions of taxability, and any decision rendered by it of such questions is void.

2. The office of the writ of certiorari is to review an erroneous verdict or judgment, not to set aside one absolutely void.

No. 13139. MARCH 13, 1940. The Court of Appeals (in Case No. 26703) certified to this court for decision the following question:

"1. Where the tax-assessors of Fulton County, Georgia, made a tax-assessment for the years 1935, 1936, and 1937, against a nonresident corporation, upon certain mortgages owned by the corporation, which were secured by real estate in Fulton County, Georgia, for the reason that they were not returned for taxation by the corporation, and were credits which had a tax situs in Fulton County, Georgia, and where the corporation demanded an arbitration under authority of the Code, § 92-6912, and the arbitrators appointed under such authority, after a hearing, held ``that the property assessed for taxation against Allied Mortgage Companies Inc. is not taxable in Fulton County, Georgia, and that said Allied Mortgage Companies Inc. is not liable for taxes on said property during either of the years 1935, 1936, and 1937,' is the finding or decision of the arbitrators reviewable by certiorari?"

Judge Pratt was designated for this case, instead of Justice Duckworth, disqualified. 1. In the cases of Columbus Mutual LifeInsurance Company v. Gullatt (13108), and Guardian LifeInsurance Company of America v. Gullatt (13115), ante, 747, it was ruled that there is ample provision, under statutes existing at the time of the enactment of the tax-equalization act (Ga. L. 1913, p. 123), for a taxpayer to contest the taxability of his property assessed for taxation. This is by a petition in equity in the superior court having jurisdiction. This procedure is laid down in the act of 1908 (Ga. L. 1908, pp. 25, 26), and in the act of 1910 (Ga. L. 1910, pp. 22 et seq.). Section 6 of said tax-equalization act contains the following provision: "Said arbitration shall be had . . in the same manner as is now provided for arbitration of individual tax returns, except in so far as the existing law may be modified by the provisions of this section." While this provision was omitted from the present Code, § 92-6912, it appears to be still in force. It was applied by this court in Vestel v. Edwards, 143 Ga. 368 (85 S.E. 187). By the act of 1910 it is provided that the taxpayer may "refer the question of the true value to arbitrators," but "should the taxpayer desire to contest the taxability of said property, . . he may do so by petition in equity in the superior court." Construing together the acts of 1910 and 1913, as was done in Vestel v. Edwards, supra, we are unable to hold that the act of 1913 either repealed the provisions of the act of 1910 for the determination of taxability by petition in equity in the superior court having jurisdiction, or enlarged the powers of arbitrators which were restricted by the 1910 act to the question of value. "In the absence of express language to that effect, a statute will not be construed as repealing a former one, if by any reasonable construction the two may be reconciled." McGinty v. Gormley, 181 Ga. 644. The tax laws of this State evince a fixed policy of the legislature to restrict boards of arbitrators provided therein to questions of value, and to make the superior court the forum in which to contest the taxability of property assessed for taxation. The board of arbitrators had no power to adjudicate the question of taxability, as it appears was done from the question propounded by the Court of Appeals. Its attempted decision of this question is therefore void.

2. It is well settled by the holdings of both this court and the Court of Appeals that the writ of certiorari does not lie to set aside a void finding or judgment. Bass v. Milledgeville,122 Ga. 177 (50 S.E. 59), and cit.; Sawyer v. Blakely,2 Ga. App. 159, 161 (58 S.E. 399); Simpkins v. Hester,3 Ga. App. 160 (3) (59 S.E. 322).

Whether or not other reasons argued are meritorious, it follows from what is said above that the certified question must be

Answered in the negative. Reid, C. J., Atkinson, P. J., andBell, Jenkins, and Grice, JJ., concur.