Chilivis v. Backus

• Decision Date: 27 January 1976
• Docket Number: Nos. 30561,30562,s. 30561
• Citation: Chilivis v. Backus, 222 S.E.2d 371, 236 Ga. 88 (Ga. 1976)
• Court: Georgia Supreme Court
• Parties: Nick P. CHILIVIS, Commissioner, et al. v. W. H. BACKUS et al. W. H. BACKUS et al. v. Nick P. CHILIVIS, Commissioner, et al.

Page 371

222 S.E.2d 371

236 Ga. 88

Nick P. CHILIVIS, Commissioner, et al. v. W. H. BACKUS et al.

W. H. BACKUS et al. v. Nick P. CHILIVIS, Commissioner, et al.

Nos. 30561, 30562.

Supreme Court of Georgia.

Jan. 27, 1976.

Rehearing Denied Feb. 11, 1976.

Arthur K. Bolton, Atty. Gen., Gary B. Andrews, Asst. Atty. Gen., Atlanta, Taylor, Bishop & Lee, James A. Bishop, Thomas J. Lee, Cowart, Sapp & Gale, Robert A. Sapp, Brunswick, for appellants.

Miller, Beckmann & Simpson, John B. Miller, Savannah, Bennet, Gilbert, Gilbert & Whittle, Harrell & Gayner, John M. Gayner, III, Brunswick, for appellees.

JORDAN, Justice.

The State Revenue Commissioner, tax officials of Glynn County, and the Commissioners of the City of Brunswick appeal from the grant of a partial summary judgment and injunctive relief to certain taxpayers. The taxpayers appeal from rulings adverse to them in the summary judgment.

The first count of the complaint of the taxpayers, which is the basis of the rulings in these appeals, attacked the validity and constitutionality of the 1974 Glynn County Tax Digest, and sought injunctive relief against its completion and implementation.

The trial judge granted interlocutory injunction which, as modified, enjoined the completion and implementation of the 1974 digest and the hearings on pending appeals to the county board of equalization, but allowed the county to collect taxes on a specified basis.

Both parties moved for summary judgment, and after considering evidence, the trial judge granted partial summary judgment to both parties, and made the interlocutory injunction permanent except as modified by the rulings on summary judgment.

The summary judgment order made the following declarations of the rights of the parties:

(1) The written notices of changes in the assessments of taxpayers wwere given within the time required by law.

(2) The notices sent the taxpayers were defective. These defective notices do not nullify the entire digest, but only the 1974 assessment of the taxpayers receiving the notices. These notices cannot be corrected and the tax assessors are enjoined from sending corrected notices.

(3) (A) Summary judgment is denied the taxpayers on their contention that the uniformity of taxation provision of the Constitution requires that only one method be used in determining fair market value for all tangible property.

(B) The Board of Tax Assessors in determining the fair market value of tangible property utilized, among other considerations, the methodology reflected in paragraphs 14-21 of the contract entered into between Glynn County and H. L. Yoh Company, which methodology was initiated, adopted, and used by the board. The board thus created an unconstitutional classification of tangible property, and summary judgment is granted to the plaintiff taxpayers, and all who intervene, whose property has been so classified by the board.

(4) (A) Code §§ 92-5701, 92-9702 (as amended by Ga.L.1968, p. 358), and 92-5703 (as amended by Ga.L.1968, pp. 358, 359; 1972, p. 1102) are not unconstitutional for the reason alleged, that the term 'fair market value' is too vague and indefinite.

(B) There is no merit in the comtention that Code Ann. § 92-6911 (Ga.L.1971, p. 33; 1972, pp. 1114, 1118; 1974, p. 609), which contains the words 'just and fair valuation' repeals by implication Code §§ 92-5701, 92-5702, as amended, and 92-5703, as amended, containing the words 'fair market value.'

(C) The tax assessors must consider only the actual present use of the property, and if the 'highest and best use' of the property is different from its actual present use, then the only permissible criteria in establishing fair market value is the actual present use.

(5) The taxpayers have an adequate and complete remedy at law under Code Ann. § 92-6912 (Ga.L.1972, pp. 1094, 1095; 1973, pp. 709, 710; 1974, pp. 609, 610) for their contention that the digest lacks the uniformity required under the Constitution.

(6) The motion to dismiss the State Revenue Commissioner is denied.

Under the rulings in Tax Assessors v. Chitwood, 235 Ga. 147, 218 S.E.2d 759 (1975), the trial judge correctly held in division (5) of the summary judgment that the taxpayers have an adequate and complete remedy at law by appeal to the county board of equalization for their contention that the digest lacks the uniformity required by the Constitution.

It is apparent that the judge intended this ruling to have a very limited scope, since he made rulings on the validity of notices sent by the tax assessors informing taxpayers of changes in the valuations of their properties. Such matters should be litigated in the appeals to the county board of equalization. However, we concur with the ruling of the judge in division (1) that the notices were given within the time allowed by law. Register v. Langdale, 226 Ga. 82, 86, 172 S.E.2d 620 (1970). The trial judge clearly erred in division (2) in enjoining the tax assessors from sending corrected notices to any taxpayers receiving defective notices. See Cox v. Blackmon, 230 Ga. 275, 196 S.E.2d 403 (1973). The injunction must be vacated.

In division (3)(A) of the summary judgment the trial judge correctly ruled against the taxpayers' contention that it was not permissible under the uniformity of taxation provision of the Constitution to apply different...