Board of Com'rs of Newton County v. Allgood, 29800

• Decision Date: 20 March 1975
• Docket Number: No. 29800,29800
• Citation: 214 S.E.2d 522,234 Ga. 9
• Parties: BOARD OF COMMISSIONERS OF NEWTON COUNTY et al. v. Wiley ALLGOOD et al.
• Court: Georgia Supreme Court

Page 522

214 S.E.2d 522

234 Ga. 9

BOARD OF COMMISSIONERS OF NEWTON COUNTY et al. v. Wiley ALLGOOD et al.

No. 29800.

Supreme Court of Georgia.

March 20, 1975.

Charles D. Strickland and John V. Costly, Jr., Covington, for appellants.

W. K. Campbell, Campbell & Bouchillon, Covington, for appellees.

Syllabus Opinion by the Court

HILL, Justice.

Wiley Allgood and the other members of the County Board of Education for Newton County filed suit for declaratory judgment and injunction against the Board of Commissioners and Tax Commissioner of Newton County seeking a declaration that the board of education has the right to require the board of commissioners to set a 20 mill levy for maintenance and operation of Newton County schools and an injunction against the tax commissioner to prevent his collecting taxes at a lesser rate.

The trial court ruled in favor of the plaintiffs on January 24, 1975, enjoining the defendant tax commissioner from collecting ad valorem taxes for the year 1974 until the board of education's recommendation as to the rate of millage to be levied for schools (not to exceed the maximum limitation set by law) is made the levy by the defendant board of commissioners for the support and maintenance of education in Newton County. Defendants have appealed.

The facts are as follows:

The Newton County Board of Tax Assessors, appointed by the board of commissioners, did not submit the 1974 county tax digest to the State Revenue Commissioner on June 1, 1974.

On October 28, 1974, the board of education met and approved a letter to be sent to the chairman of the board of commissioners and to the State Revenue Commissioner, contending that the tax digest was too low and stating that 'Although by law the Newton County Board of Education is limited to a maximum levy of 20 mills, we must recommend a 26 mill levy on the above digest for maintenance and operation. We also recommend that the digest be adjusted to that 20 mills would generate $2,660,156.00.'

That letter, on his letterhead as superintendent of schools, was dated October 29 and signed by Frank G. Cloer. Mr. Cloer is also secretary of the board of education.

On October 29, the tax digest was submitted with accompanying documents to the revenue commissioner for examination. One of the accompanying documents was the October 29 letter of Mr. Cloer.

On November 8, 1974, the revenue commissioner returned the tax digest to defendants stating that the digest as submitted did not meet the requirements of law that all property be returned at fair market value and assessed at 40%. He requested that the board of tax assessors make adjustments in the valuations to achieve the purpose and intent of law that all property be assessed at fair market value.

The following day, November 9, the digest was returned to the revenue commissioner by the tax assessors without adjustments having been made in the valuations, accompanied by a letter requesting that the revenue commissioner make such adjustments in the digest as were required by law.

On December 3, the revenue commissioner ordered that the assessed values of the property be raised by a ratio of 1.27 (an increase of 27%) to achieve a digest of 40% of fair market value, and that, by operation of law as contained in Section 1, subsection (c), Ga.L.1972, p. 174 (Code Ann. § 92-7001), the millage levy, as submitted with the 1974 digest, be adjusted so as to insure that the adjusted county digest will produce an amount of revenue reasonably equivalent to that amount of revenue which would have been produced had no necessary adjustments been made to the county valuations.

On December 6, the board of education certified, and served upon the tax commissioner, its recommendation to levy 20 mills on the adjusted digest for maintenance and operation of the Newton County schools.

On December 9, the chairman of the board of commissioners wrote a letter to the Revenue Commissioner stating in part that after the revenue commissioner factored the digest by 1.27 (on December 3), the board of education had asked for 20 mills, but the board of commissioners planned to set the levy at 16 mills.

On December 19, the board of commissioners levied 16 miles for school operation, treating the board of education's October 29 request as being 20 mills, the legal limit, and adjusting it downward to correspond to the upward adjustment of the digest. The minutes of that December 19 meeting of the board of commissioners state that the December 6 resolution of the board of education was not made available to the Commissioners until after passage of the 16 mill levy.

A restraining order against the defendant tax commissioner was entered on Monday, December 23, at 12:35 p.m., based upon the certificate of counsel for the board of education that the tax commissioner had been notified the preceding Saturday, December 21, that such order would be sought. The order required the defendants to show cause, on January 10, 1975, why the prayers of the petition for declaratory judgment and injunction should not be granted.

This suit, seeking a declaratory judgment as to the board of education's right to levy 20 mills and to enjoin the tax commissioner from collecting taxes at a lesser rate, was filed on December 24, 1974. On that same day, the tax commissioner and the clerk of the board of commissioners were served, and all parties consented to a final trial and determination at the January 10 hearing.

On January 7, 1975, at a meeting of the board of commissioners the board of education requested a levy of 20 mills for the maintenance and operation of the schools. No action was taken by the board of commissioners at this meeting on the ground that because the board of education had filed suit, the decision should be made by the court.

On January 8, the defendants filed defensive motions and an answer. One ground of motion was that an action for declaratory judgment was not maintainable for the reason that the board of education had not certified the millage to the board of commissioners.

Evidence was heard on January 10, several of defendants' motions were overruled, and the case was continued to January 17.

On January 14, at another meeting of the board of commissioners the board of education presented its January 10 certificate to the board of commissioners requesting 20 mills for the maintenance and operation of schools. A motion made to honor this request died for lack of a second.

On January 16, the board of education sought to amend its petition so as to allege the events of January 7 and 14. The defendants' objections to such amendment were overruled at the hearing the next day.

The hearing was resumed on January 17, additional evidence was taken, and the hearing was recessed until January 21. On January 22, the trial court entered an order on plaintiffs' prayers for declaratory judgment and injunctive relief, in order to maintain the status quo, restraining the tax commissioner from completing preparation of the 1974 tax bills and collecting such taxes.

On January 24, 1975, the trial court entered detailed findings and conclusions in favor of the board of education. This appeal by the defendants followed.

As stated by the trial court, the basic question in this case is whether the board of education has the legal right to establish a millage rate to produce revenue for the maintenance and operation of public schools on a digest as finally approved by the State Revenue Commissioner, or is it bound by its original levy on a digest prepared by the tax assessors which is rejected by the revenue commissioner and is subsequently, at the request of the tax assessors, factored by the revenue commissioner so as to increase the assessed value of property in the county.

After reviewing the applicable statutes and court decisions, the trial court found the law to be in accord with both fairness and logic, saying: 'Common reasoning dictates that no board of education should be required to determine a binding millage rate on a tax digest which is disapproved by order of the State Revenue Commissioner as being assessed at less than 40 percent of the fair market value.' We concur, and affirm.

Before reaching the basic question, however, several preliminary matters require disposition. The defendants have enumerated as error several of the trial court's orders of January 10, 1975, overruling their defensive motions, to wit: the motion to dismiss the petition for lack of notice to the board of commissioners prior to entry of the December 23 restraining order against the tax commissioner, the motion to dismiss based on the ground that the school board's levy had not been properly certified to the board of commissioners, and the motion to dismiss based on back of service of process on the board of commissioners.

Defendants also have enumerated as error the trial court's allowance, over objection, of the amendment to the complaint, and the trial court's order of January 22 maintaining the status quo.

1. Code Ann. § 81A-165(b) provides in pertinent part that 'A temporary restraining order may be granted without written or oral notice to the adverse party or his attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court, in writing, the efforts, if any, which have been made to give the notice and the reasons supporting said party's claim that notice should not be required.' Compliance with this provision is jurisdictional; i.e., is mandatory. Mar-Pak Michigan, Inc. v. Pointer, 226 Ga. 189, 173 S.E.2d 206.

However, in this case the complaint sought declaratory judgment (not injunctive relief) against the board of commissioners and injunctive relief against the tax commissioner....