Shippen Bros. Lumber Co. v. Elliott , 1910 Ga. LEXIS 331 ( 1910 )

Atkinson, J.

1-2. The rulings announced in the first and second headnotes do not require elaboration.

3. The plaintiff in error was a taxpayer in the town of Ellijay. It omitted to return its property for taxes for the year 1909. The mayor and council, after giving notice and a hearing, assessed the property at a stated value for the purpose of taxation. Execution issued for the amount of the taxes based on the assessed value, and suit was brought to enjoin the enforcement of the execution. It was contended that the mayor and council were without authority to assess the. value of the property. The charter of the town of Ellijay contained the following: “Sec. X. Be it further enacted. That the marshal of said town shall receive the return of property, both real and personal, and shall lay the same before the mayor and council before an assessment has been made; that when any person or corporation fails or refuses to return its property for taxation, or when property is returned below its true market value, the mayor and council may assess or raise the valuation of any property to its true market value.” (Acts 1890-91, vol. 2. p. 898.) Tt was alleged that section ten was unconstitutional, because it violated the due-process clause as embodied in the constitution of the United States (Civil Code, § 6030), and of the constitution of the State of Georgia (Civil Code, § 5700), it being substantially the same in. each of the constitutions. The attack upon the constitutionality of this provision of the charter was based upon the ground that there was no provision made which afforded a hearing to a taxpayer in the matter of fixing the value at which his unreturned property should be taxed. The town of Ellijay was incorporated by the act approved August 16, 1883 (Acts 1882-83, p. 297), and its charter was subsequently amended at several different times (Acts 1887, p. 584; Acts 1889, p. 1078; Acts 1890-91, p. 898). Section 10 of the act of 1891, which is attacked as being unconstitutional, when considered in connection with all of the provisions of the charter as contained in the act incorporating the town of Ellijay and the several amending acts above mentioned, in so far as it relates to the ascertainment of values of unreturned property for taxation, does hot 'contemplate the conferring of power upon the mayor and council to provide by ordinance for the ascertainment of the value of unreturned property, but professes to be a complete act within itself and to make final disposition of the matter by conferring upon the mayor and council directly the power to assess the value, and makes no provision which affords the taxpayer a hearing as to the value of property to be assessed, but the assessment by the mayor and council is contemplated to be final and binding. It thus appears that the question before us is different from what it might be if the charter provided authority to assess the value of property, and expressly conferred power upon the municipality to adopt ordinances .providing for the ascertainment of values, and ordinances were in fact adopted which provided for notihe and a hearing to the taxpayer. In City Council v. King, 115 Ga. 454 (41 S. E. 661), it was-said: “A legislative act which undertakes to empower a city council to collect ‘all sums that may be assessed by said city council, or its authority, against each and every improved lot lying on any street in [the city], through which the pipes of the [city] waterworks may pass/ is unconstitutional when it makes no provision for fixing the amount of the assessment for which it provides, with relation either to the cost thereof or the benefits to the property-owners interested, nor for notice to them, nor for giving them any hearing with respect to the reasonableness or justness of such assessments. (See Acts 1887, p. 568.) An act of this nature, with such'omissions, is violative of article 1, section 1, paragraph 3, of the constitution, which provides that No person shall be deprived of . . property except by due process of law.’” In the case of Savannah, Florida & Western Ry. Co. v. Mayor etc. of Savannah, 96 Ga. 680 (23 S. E. 847), it was said: “That the charter of a city provides for the appointment by the mayor and aldermen of freeholders to assess the damages sustained by lot owners in consequence of the opening or extension of any street, with power to the mayor and aldermen, to enforce the award or decision of these assessors, without providing for notice of any kind to such lot owners as to these matters, would not render the charter violative of the constitutional prohibition against depriving persons of their property without due process ot law, if the charter made any provision for such notice to lot owners as would allow them an opportunity to be heard with reference to the amount of the compensation to be paid them before such assessments should become finally binding and conclusive upon them. . . In the absence of any provision whatever for such notice in a city charter, it’is unconstitutional in the respect above indicated.” In each of the foregoing-cases there was statutory power conferred upon the. municipality to do the thing attempted; but in each instance, as is true with the statute, creating the charter of the town of Ellijay, there was an omission to provide for a hearing- to the property-owner, and the law was held to be unconstitutional. The property-owner is entitled to a hearing at some time before the assessment of the value of his property becomes finally binding, and a statute which attempts to authorize an assessment when the law does not afford him such a hearing will be declared unconstitutional. Central of Georgia R. Co. v. Wright, 207 U. S. 127 (28 Sup. Ct. 47, 52 L. ed. 134); 8 Cyc. 1108. It will not suffice that he may have been afforded a hearing as a matter of grace ; where he is entitled to a hearing, it is essential that the law should afford it to him as a matter of right. Security Trust Co. v. Lexington, 203 U. S. 323 (27 Sup. Ct. 87, 51 L. ed. 204) Process of Law, by McGehee, c. 2, p. 82; Gray on Limitations of Taxing Power, § 1165, p. 579. Under a proper construction of the charter of the town of Ellijay, the mayor and council would have complied with its terms with reference to the assessment of unreturned property for taxation without giving any hearing whatever, or passing any ordinance on the subject; and the hearing which they gave the plaintiff in error was given purely as a matter of grace. After construing the charter of the town of Ellijay as an effort to confer power upon the mayor and council to assess the value without also making-provision which afforded the property-owner a hearing, we have considered whether the plaintiff in error might not have been entitled to a hearing in a court of equity, and thus to have upheld the constitutionality of section 10 of the charter; but under the reasoning in Oily of Augusta v. Pearce, 79 Ga. 98 (4 S. E. 104), we have concluded that as to the question of the ascertainment of mere value equity will not afford a hearing, and we can discover no ground upon which to defend the constitutionality of section 10 of the charter as against the attack made upon it. As it was unconstitutional, all the proceedings under it were necessarily void, and the court ought to have granted the injunction. Having reached this conclusion, it is unnecessary to deal with other questions in the case, which depended entirely upon the discretion of the judge. Judgment reversed.

All the Justices concur.