Committee for Better Government v. Black, A94A2727
| Decision Date | 30 January 1995 |
| Docket Number | No. A94A2727,A94A2727 |
| Citation | 216 Ga.App. 173,453 S.E.2d 772 |
| Parties | COMMITTEE FOR BETTER GOVERNMENT v. BLACK et al. |
| Court | Georgia Court of Appeals |
Ted B. Herbert, Marietta, for appellant.
Jimmy Hill, pro se.
R. Mark Mahler, Canton, for appellees.
A proceeding was instituted under OCGA § 48-5-296 to remove from office the chairman and certain members of the Cherokee County Board of Tax Assessors.
1. OCGA § 48-5-296 provides that "[w]henever by petition to the judge of the superior court any 100 or more freeholders of the county allege that any member of the county board of tax assessors is disqualified or is not properly and impartially discharging his duties or is discriminating in favor of certain citizens or classes of citizens and against others, the judge shall cite the member to appear before him...." Pursuant to this Code section, the judge then "shall hear and determine the matter without a jury and shall render such judgment and order as may be right and proper, either dismissing the petition or removing the offending member ... from office and declaring a vacancy in the office."
The initial question is whether this suit must be dismissed, despite the absence of a motion to dismiss, in that it is not being prosecuted in the name of a legal entity and is therefore null and void. See Embassy Row Assoc. v. Rawlins, 162 Ga.App. 669, 292 S.E.2d 541 (1982); Cook v. Computer Listings, 137 Ga.App. 526, 527, 224 S.E.2d 501 (1976); Orange County Trust Co. v. Estate of Abe Takowsky, 119 Ga.App. 366, 367 (3, 4), 166 S.E.2d 913 (1969).
OCGA § 48-5-296 authorizes 100 or more freeholders of the county to petition the superior court judge for the removals sought here. Although the Committee for Better Government, which is not a legal entity, is designated as the plaintiff in the style of the complaint, over 100 freeholders are stated as the plaintiffs in the body, and the petitions of the freeholders were presented to the court through the complaint as exhibits. Each petition alleges that the named board members, without lawful authority, granted inventory freeport exemptions to select business taxpayers after the mandatory deadline and thereby caused the county to lose tax revenue. In each petition, the petitioner authorized the Committee to present the petition on his or her behalf to the superior court.
This method of presentation meets the pleading and procedural requirements of the statute, which implicitly contemplated the formation of a like-minded group of freeholders who act in concert to obtain the remedy provided. Otherwise, there would be no orderly process for the redress the law provides. The requisite number of individuals who had the capacity to sue constituted the plaintiffs, who in pursuing their common interest are known by their committee name. Because of their number and their freeholder status, they qualified to invoke the statutory cause of action.
The proper style of the case would be the names of the petitioner freeholders. See, e.g., Thompson v. Queen, 198 Ga.App. 627, 402 S.E.2d 361 (1991); Allen v. Norris, 151 Ga.App. 305, 259 S.E.2d 701 (1979). Nevertheless, their composite designation is not fatal because substance prevails over form. Bytell v. Paul, 173 Ga.App. 83, 84, 325 S.E.2d 451 (1984). In these circumstances, the suit is not subject to dismissal. Cf. Block v. Voyager Life Ins. Co., 251 Ga. 162(1), 303 S.E.2d 742 (1983).
2. Plaintiffs contend that the court erred in not removing defendants from office because of their unauthorized and discriminatory action in allowing untimely applications for freeport exemptions in 1993.
OCGA § 48-5-48.2 authorizes the governing authority of any county or municipality to enact the freeport exemption, subject to the approval of the electors. Cherokee County electors gave such approval in 1978. OCGA § 48-5-48.1(a) states that when any person, firm, or corporation seeks a freeport exemption, the application "shall be filed in the year in which exemption from taxation is sought no later than the date on which the tax receiver or tax commissioner of the county in which the property is located closes his books for the return of taxes." OCGA § 48-5-48.1(c) states that the failure to "properly" file the application "shall constitute a waiver of the exemption on the part of the person, firm, or corporation failing to make the application for such exemption for that year." There is no express authority to grant an extension of time or to ignore the statutory waiver of exemption for failing to make a timely application.
The evidence introduced at the hearing below showed that the Cherokee County tax books are closed on April 1 of each year. The Board was informed in May 1993 that the statutory deadline for filing applications for freeport exemptions is April 1. The chairman of the Board, who was the defendants' sole witness, testified that he voted to allow untimely applications for 1993 because the past practice of the Cherokee County Tax Office's Personal Property Department had misled applicants into believing they could apply for the...
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In re Chipman-Union, Inc.
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