D'Antignac v. City Council of Augusta , 31 Ga. 700 ( 1861 )

By the Court. —

Jenkins, J.,

delivering the opinion.

We are not called upon in this case to pass upon the validity of the claim which defendants in error are seeking to enforce against plaintiff, nor do we intend so- to do. It appears from the record, that defendants in error (being a municipal corporation, and authorized by their charter to assess against the inhabitants of the city of Aug'usta, taxes for the support of the municipal government) on the fourth day of February, i860, caused ten executions to be issued by their clerk, against the plaintiff in error, each for the tax due by him for one year, and all covering the ten years from the year 1850 to the year 1859, inclusive. These executions were not issued from a Court of Record, to enforce a judgment obtained either at law or in equity, in a suit inter partes. They were issued by authority of the general ordinance of the city council of Augusta, providing for the collection of taxes by a summary proceeding against defaulters. The proceeding thus authorized is exporte summary, and extraordinary, in so far as it departs from the course prescribed by the general law of the land for the collection of debts. The legality of the ordinance is not questioned; it has been treated as a statute, both in the pleadings and iii the argument. These executions having been levied upon certain property of the defendant, he 'filed his bill in chancery, alleging that they had not been issued in conformity with the. ordinance in question, and were, therefore, illegal; and praying that the plaintiff be restrained from proceeding further to enforce them. The injunction was granted, in the inception of this case, but was, upon the filing of the answer, on motion, dissolved — -the Court below holding that they had been legally issued, and this judgment is assigned as error.

Our first inquiry is into the law of the case; and this is to be found iq those sections of the general ordinance of city council of Augusta, which impose upon the inhabitants the duty of paying, and upon the collector and treasurer the duty of collecting taxes; and which define the status of a defaulting taxpayer, and authorize the issue of execution against him.

During the years from 1850 to 1856 (both included), the section governing this case was the 105th, and is in these words: “The collector and treasurer shall collect all taxes due to the city, unless the collection thereof is otherwise provided for,. It shall be the duty of the collector and treasurer to give notice in one or more of the gazettes of this city, and to call at least once at the house of each person taxed, to demmd the taxes, and unless such taxes be paid within tlwee months from the date of said notice, it shall be his duty to make a return of such defaulters to the city council, and thereupon executions shall issue against the goods or person of such defaulters, for the amount of his, her or their taxes, with the addition of ten per cent.,” etc. The remaining portion of this section is omitted, because it is not pretended that it is applicable to this case.

In the year 1857, upon a revisal of the general ordinance, section iii was made to supersede Section 105, above quoted ; but those portions of both sections immediately applicable to the question under consideration, are identical, with this exception, viz.: In framing the 11 ith section of the ordinance of 1857, the words — “and to call at least once at the house of each person taxed, to demand the taxes” — which are found in the 105th section of the pre-existing ordinance, are omitted, and for them the following words are substituted: “And all persons liable for city taxes, shall be required personally, or by agent, to pay the same at his office” [the office of the collector and treasurer].

A new rale was thus introduced, the difference being, that previous to 1857, it was the duty of the collector and treasurer to call upon the taxpayer and demand his taxes; whereas, in and after 1857, it was the duty of the taxpayer to call upon the collector and treasurer, and make payment without any other demand than the notice in the public gazette. In view of this change, the executions we are considering arrange themselves into two classes: 1st, those issued for taxes due prior to; and 2d, those issued for taxes due in and after 1857.

Such being the authority given the collector and treasurer of the city of Augusta in the premises, we next inquire what is the general or public law governing the exercise of this authority.

The following propositions may be regarded as law, settled by repeated adjudications of high authority:

1. That in exporte proceedings of this kind, under special authority, great strictness is required.

2. That in proceedings by statute authority, whereby a man may be deprived of his property, the statute “must be strictly pursued. Compliance with all its prerequisites must be shown.

Ronkendorf vs. Taylor’s Lessee, 4 Peter’s Reports, 359; Williams vs. Peyton, 4 Wheaton’s Reports, 77; Bloom vs. Burdick, 1 Hill’s Reports, 141, 142; Thacher vs. Powel, 6 Wheaton, 119; Jesse vs. Preston, 5 Grattau, 120; Jackson vs. Shephard, 7 Cowen, 90, 91.

In all of these cases the contest was between a purchaser at a public sale, professedly in pursuance and by authority of statute law, and the party whose property was thus sold or his representative or assigns. In all of them, save Bloom vs. Burdick, 1 Hill,'the sale was for the collection of taxes in arrears.

They are, therefore, directly in point; and the rule of law recognized in each might, with propriety, if necessary, be more rigidly enforced in the case under consideration, for the reason that the parties here are the government assessing and seeking to collect taxes, and the inhabitant resisting their collection.

Applying, then, these rules of law to the ordinances in question, we proceed to inquire whether the tax executions against the plaintiff in error were legally issued ?

By the letter of those ordinances, execution was authorized to be issued only against defaulting taxpayers. They require that payment shall be made to the collector and treasurer, but that execution, upon failure to pay, shall be issued by the clerk of council'. To make this act of the clerk legal, there are three indispensable prerequisites: 1st, that the collector shall have made such call upon the taxpayer as the ordinance prescribes; 2d, that the taxpayer, after such call made, shall have failed within the time designated by the’ ordinance to pay; 3d, that the collector shall have reported the taxpayer thus failing, to the city council. Anterior to the year 1857, to make the call upon the taxpayer a full compliance with the ordinance, it was necessary that the collector publish notice in one or more of the gazettes of the city, and “call at least once at the house •of each person taxed, to demand the taxes," and to the first class of executions this provision is applicable. It is conceded that he did publish notice in a gazette of the city, but it does not appear that the collector and treasurer, in any one of the’years from 1850 to 1856, inclusive, did “call at the house of the plaintiff in error to demand his taxes.” The complainant in his bill alleges that he did not. The corporation, by attorney, say they have no certain knowledge whether or not he did. Mayor Blodget, answering upon his corporal oath, says he has no certain knowledge, but believes the collector did not make such call. This being a prerequisite, must appear affirmatively. 'In Jackson vs. Shephard, supra, this precise question was made and so determined. Here there was one prerequisite not complied with.

It is further conceded that the collector for those years did not, in any one of them, report the plaintiff in error to the city council, as a defaulter. This is another prerequisite not complied with. The taxpayer, then, not having been in either of those years in a predicament which made him, by the terms of the ordinance, liable to be reported as a defaulter, and not having been, in point of fact, so reported, the ordinance conferred no authority on the clerk to issue executions.

In regard to the second class of executions, those issued severally for the years 1857, 1858, 1859, the prerequisite of a call and demand at the house of the person taxed did not obtain. It had been dispensed with by an amendatory ordinance. But the amendatory ordinance, like the original, requires that he shall have been reported by the collector to the council, as a defaulter, and that then executions may be issued. It is conceded, that the plaintiff in error was not, in either of the three years last mentioned, so reported. For lack of this prerequisite, atone, we hold that the executions for the ■taxes of those three years were illegally issued.

It is insisted by the defendants in error, that these prerequisites of the ordinances in question were complied with, and the executions legally issued; and so the Court below held. This allegation of the defendants and ruling of the Court rest upon the averment in defendant’s answer, that in the year i860, Hill, who filled the office of collector and treasurer during all the years wherein plaintiff in error is .alleged to have made default, having died, Edward Bustin, his successor, made demand of plaintiff personally, for the taxes of all those years; and upon his failing to pay, reported him to the city council as a defaulter, before the executions were issued.

To determine whether or not this was a compliance with the prerequisites of those ordinances, we must look a little more closely into them to ascertain when the demand under the first, and when the report of default under both, must be made. The one hundred and fifth section (of force previously to 1857), after making it the duty of the collector and treasurer to publish notice, and to call and demand payment, proceeds in immediate connection, thus: “And unless said taxes be paid within two- months from the date of said notice, it shall be his duty to- make return of such defaulters,” etc. It is his duty, in cases of default, to do three things, and in this order: To give “notice,” to make “demand,” to make “retwm.” The taxpayer is entitled to notice in the gazette, and to demand at his house, and he is allowed two months within which to pay, not after demand at his house, but after “notice?’ in the gazette. He is entitled-to “demand,” before being placed, in default, but he is required to pay within two months after notice in the gazette; therefore, the demand must be made within two months after notice in the gazette.

There need be no more distinct limitation of the time within which demand, as a prerequisite to the issue of execution, must be made. No demand was made in any one of the years, anterior to 1857, upon the plaintiff in error, within such time and the after demand in i860, was no compliance with the ordinance.

Regarding the time within which defaulters in any one year must be returned, there is little, if any, less certainty. Section 107 of the General Ordinance, existing anterior to 1857, and section 113 of the General Ordinance, as revised and amended in that year, are precisely the same, and, in, connection with those sections already considered, furnish a rule for determining, with sufficient precision, the time within which defaulters must be returned. They are in these words: “At the regular time for returning defaulters on the digest, the collector and treasurer shall become liable for the amount of the digest, after deducting the sum for which defaulters are returned, and he shall become liable for the amount of all executions issued at the expiration of the period in which, by regular course of law, they might have been satisfied, unless he show sufficient cause why satisfaction has not been obtained; and he shall be liable for the amount of all executions not satisfied, which may remain in his hands at the expiration of his term of service, unless he shall, zvithin ten days thereafter, deliver them to' the city council.”

The first words of this ordinance, viz.: “At the regular time for returning defaulters,” settle conclusively one point in controversy, to wit: That there is a regular time for the making of this return, and it only remains to determine what that time is. By section 105 of the old, and section hi of the present ordinance, it is provided, that “unless said taxes be paid within two months from the date of said notice (in the gazette), it shall be his (the collector’s) duty to make a return of such defaulters to the city council,” etc. We think this enjoins the performance of the duty so soon after the expiration of the two months, as, in the regular course of things, it can be done. A reasonable construction would be, that defaulters for the current year should be returned to the council at their first regular meeting after the expiration of the two months, if sufficient time intervened; i-f not, then at the next succeeding meeting. But it is not necessary, in this case, to place so narrow a limit upon the time. There is a more liberal construction, to which, for the sake of the argument and greater certainty, we resort.

Returning to section 107 of the old — 113 of the present ordinance above quoted — we find it provided, that “he (the collector) shall be liable for the amount of all executions not satisfied, which may remain in his hands at the expirar tion of his term of service; unless he shall within ten days thereafter (i. e., after the expiration of his term of service) deliver them to the city council.” Now, the context shows that the executions here spoken of are such as may have been issued against taxpayers making default, during his term of service. They must (to save him from liability) be delivered within ten days after his term of service shall have expired. His term of service is one year (and until his successor shall be appointed and qualified, see Secs. 103 of the old and 109 of the present ordinance).

Clearly, then, the ordinance contemplates that execution shall issue against defaulters before the expiration of the term of office of the collector, within which the default was made; or, in other words, within the same fiscal year (of the corporation) in which default was made. But, by the ordinance, the issue of execution must be preceded by a return of the defaulter, ergo such return must be made before the expiration of the collector’s term of office — before the expiration of the fiscal year within which default was made. By the first clause of the section we are now considering, the measure of the collector’s liability is fixed. It is the amount of the tax digest, less the sums for which defaulters are returned. Will the city council, the defendants in error, say they intended, by the enactment of this ordinance, to leave themselves, or permit their collector to leave them, at the expiration of his term of service, without the data necessary to measure, to ascertain his liability? Scarcely, when, by the next succeeding section (108 of the old and 114 of the present ordinance), they provide that executions shall issue against him and his securities for the amount of his liability, within ten days, unless he shall pay over such amount to his successor, or deposit it in bank. If they did not so intend, they intended that defaulters in any one year shall be returned before the expiration of the then collector’s term of service. And so we must construe their ordinance.

This construction is strengthened by consideration of the nature of this corporation, and the object for which it assesses taxes. It is a corporation created for municipal government, and it is permitted to assess and collect taxes annually to defray the annual expenses of that government. It should assess no higher taxes than are necessary for that purpose; and keeping within this rule, there rests upon it both a duty and a necessity, to collect, within the year, the taxes assessed in and for that year.

If we have correctly construed this ordinance, and correctly stated the general law governing ex parte summary, statutory proceedings (of which this is one), shall it be said that after ten years of non-action, the defendant in error may cause a demand for taxes to be made, then a return of the taxpayer as a defaulter, then the issue of execution ex parte against him, whereby his property may be sold, and his title thereto divested, without a hearing — a day in Court allowed him? We think not. We hold that the defendant in -error, by refraining so long from any attempt to enforce payment of these taxes, or to place the taxpayer in the predicament of a defaulter, has lost this summary ex parte remedy against him; and must resort to suit at law or in equity, as in other cases between debtor and creditor. The judgment of the Court below is therefore reversed.

JUDGMENT. *

Whereupon, it is adjudged by the Court, that the judgment of the Court below, dissolving the injunction, be reversed, and the injunction be reinstated, on the ground: That the tax executions exhibited with the bill were illegally issued, the prerequisites of the ordinance authorizing the issue of tax executions not having been complied with.