Brandywine Townhouses, Inc. v. Joint City-County Bd. of Tax Assessors

• Decision Date: 07 January 1974
• Docket Number: No. 28124,CITY-COUNTY,28124
• Citation: 203 S.E.2d 222,231 Ga. 585
• Parties: BRANDYWINE TOWNHOUSES, INC., et al. v. JOINTBOARD OF TAX ASSESSORS.
• Court: Georgia Supreme Court

Page 222

203 S.E.2d 222

231 Ga. 585

BRANDYWINE TOWNHOUSES, INC., et al. v. JOINT CITY-COUNTY BOARD OF TAX ASSESSORS.

No. 28124.

Supreme Court of Georgia.

Jan. 7, 1974.

Rehearing Denied Jan. 28, 1974.

Swertfeger, Scott, Pike & Simmons, Wesley B. Warren, Jr., M. H. Blackshear, Jr., Richard P. Decker, Decatur, for appellants.

Guy Parker, Charles M. Lokey, Atlanta, for appellee.

Arthur K. Bolton, Atty. Gen., Richard L. Chambers, Asst. Atty. Gen., Atlanta, amicus curiae.

Syllabus Opinion by the Court

INGRAM, Justice.

This appeal is from a judgment of the Superior Court of Fulton County declaring Ga.L.1955, pp. 122, 123 (Code Ann. § 92-233(b)) to be void and unconstitutional. In this statute, the General Assembly of Georgia provided for certain homestead exemption from ad valorem taxation. In pertinent parts, the statute provides that: 'The word 'homestead' wherever used in this law shall mean and is defined to be the following: . . . (b) Where the person who is the applicant holds the bona fide fee title (although subject to mortgage or debt deed) or an estate for life, or holds under any bona fide contract of purchase providing for the conveyance of title to the applicant upon performance of the said contract, or holds under an occupancy agreement as a stockholder of a nonprofit cooperative ownership housing corporation, which holds property, either as owner or under a 99 year lease, subject to a mortgage insured by the Federal Housing Administration under Section 213(a)(1) of the National Housing Act, 64 Stat. 54, 12 U.S.C. 1715(e) (1950). (Emphasis supplied.)

The italicized language set out above was added by this 1955 legislation. The stated purpose of the Act was to make 'such homestead exemption applicable to property held under an occupancy agreement by a stockholder of a non-profit cooperative ownership housing corporation . . .'

Appellants are four individual occupant, member-stockholders in Brandywine Townhouses, Inc., and the corporation as agent for the other 237 occupant members, who sought to obtain homestead exemption under the terms of the above statute. They were denied exemption by the tax officials and on appeal to the superior court their cases were consolidated and the statute relied on by appellants for the exemption was declared unconstitutional and void.

Brandywine Townhouses, Inc., is a nonprofit cooperative ownership housing corporation of the character contemplated by the National Housing Act (12 U.S.C. § 1715e) for the benefit of low and moderate income families. As such, its members meet the criteria of this Georgia statute providing for homestead exemption. The crucial question to be decided by this court is whether the statute in question is unconstitutional as adjudged by the trial court.

The Georgia Constitution, Art. VII, Sec. I, Par. IV (Code Ann. § 2-5404), reads in pertinent parts as follows: 'The Homestead of each resident of Georgia actually occupied by the owner as a resident and homestead, and only so long as actually occupied by the owner primarily as such . . . is hereby exempted from all ad valorem taxation for State, county, and school purposes . . .' (Emphasis supplied.)

Several other homestead exemptions from taxation are either granted, or When the General Assembly enacted this homestead exemption statute, did it merely implement the constitutional grant of homestead exemption or did it create a new class of exemption beyond the limits of the Constitution?

authorized for the General Assembly to grant, in this provision of the Constitution. None, however, state specifically the language of the statutory exemption with which we are here concerned. This 'tax exemption' provision of the Constitution concludes with the mandate that, 'All laws exempting property from taxation, other than the property herein enumerated shall be void.' This means that all property must be taxed and no property except that specifically mentioned in the Constitution can be exempted from taxation. This is a fundamental principle in our basic law and is deeply rooted in the constitutional history of our State. See Athens City Waterworks Company v. Mayor, etc., of Athens, 74 Ga. 413(1).

In reaching a determination of this issue, we are mindful that: 'All exemptions from liability to taxation are construed strictly . . . The power to tax is the life blood of the state and of the governing communities, county and municipal, which are the limbs of the state, essential to the well-being of the entire body politic-indeed to its healthful action and the preservation of life.' Atlanta Street Railroad Co. v. City of Atlanta, 66 Ga. 104, 107. 'It is a cardinal rule in the construction of grants of exemption from taxation, whether such grants be by statute or the Constitution, that such exemptions should be strictly construed in favor of the public, and that nothing passes by implication; but this rule must not be pushed to unreasonableness.' City of Columbus v. Muscogee Mfg. Co., 165 Ga. 259(1), 140 S.E. 860.

Appellants argue capably in their excellent brief to this court that the members and stockholders of Brandywine Townhouses, Inc., are 'owners' of the units which they occupy as homes. They contend that the cooperative ownership concept in the statute is included within the term 'owner' as that term is used in the constitutional provision. Thus we are urged by appellants to agree that one who 'holds under an occupancy agreement as a stockholder of a non-profit cooperative ownership housing corporation . . .,' with the ownership attributes possessed by appellants, is an 'owner' within the meaning of the Constitutional Homestead Exemption Section.

However, covenants contained in the Occupancy Agreement entered into between the member-occupants of the cooperative and the corporation persuade us to reject appellants' arguments that a member thereof is an 'owner' as contemplated by the Homestead Exemption provision of the Constitution (Code Ann. § 2-5404). As observed by appellee in its brief, 'The member expressly agrees that there exists under this Occupancy...