Henson v. Georgia Indus. Realty Co.

• Decision Date: 12 April 1965
• Docket Number: No. 22857,22857
• Citation: 220 Ga. 857,142 S.E.2d 219
• Parties: Charles A. HENSON, Jr., Tax Assessor, et al. v. GEORGIA INDUSTRIAL REALTY COMPANY.
• Court: Georgia Supreme Court

Page 219

142 S.E.2d 219

220 Ga. 857

Charles A. HENSON, Jr., Tax Assessor, et al. v. GEORGIA INDUSTRIAL REALTY COMPANY.

No. 22857.

Supreme Court of Georgia.

April 12, 1965.

Rehearing Denied April 28, 1965.

Charles M. Lokey, Harold Sheats, J. C. Murphy, Henry L. Bowden, Atlanta, for plaintiffs in error.

Greene, Neely, Buckley & DeRieux, Edgar A. Neely, Jr., James A. Eichelberger, Atlanta, for defendant in error.

Syllabus Opinion by the Court

CANDLER, Justice.

Georgia Industrial Realty Company filed a petition in the Superior Court of Fulton County on July 14, 1961 and as defendants to that proceeding it named the five members of the Joint City-County Board of Tax Assessors of the City of Atlanta and Fulton County; Jack L. Camp, as Tax Commissioner and Ex-officio Sheriff of Fulton County; and Charles L. Matthews, as Municipal Revenue Collector and Ex-officio Marshal of the City of Atlanta. Its petition as amended alleges: On January 1, 1958 petitioner leased to Southern Railway Company for a period of 25 years certain described parcels of realty in the City of atlanta and Fulton County which comprise a part of that railroad facility or property known as Inman Yard. The lease contract provides that the lessee is to use the leased premises exclusively for railroad purposes and for the years 1958, 1959 and 1960 the lessee returned the leased premises to Georgia's Revenue Commissioner for State, county and municipal ad valorem taxation and paid the taxes which the Commissioner assessed against it. On May 30, 1960, the Joint City-county Board of Tax Assessors for the City of Atlanta and Fulton County notified petitioner that it had assessed the leased realty for ad valorem taxation for the years 1958, 1959 and 1960 because it had failed to return such property for taxation; and on June 7, 1961 such board notified petitioner that it had also assessed the same property for 1961 ad valorem taxation. Pursuant to those assessments, fi. fas. were issued on June 26 and June 29, 1961 and for the 1958, 1959 and 1960 taxes. Such tax assessments and the fi. fas. issued thereon are illegal and unenforceable because the proposed amendment to Art. XI, Sec. I, Par. VI of the Constitution of 1945 (Ga.L.1952, p. 591; Code, § 2-7806) which authorizes the creation of a joint city-county board of tax assessors in certain counties of this State was not legally ratified and that an act which the legislature passed in 1952 (Ga.L.1952, p. 2825) as amended, pursuant to the terms of the proposed amendment is for stated reasons invalid and therefore unenforceable. It is further alleged that the defendants are seeking to double tax such property. There is a prayer that the court issue a declaratory judgment adjudging and holding that the defendant joint city-county board of tax assessors is not, and at no germane time was, a legally constituted tax assessing authority, either for the City of Atlanta or for Fulton County; that such board acted without legal authority in assessing petitioner's parcels of land for the years 1958, 1959 and 1960 for ad valorem taxation by the City of Atlanta and/or Fulton County; that such board has no legal authority to assess petitioner's property for ad valorem taxation for the City of Atlanta and/or Fulton County for any year following 1960; that petitioner is not now and has not been since December 31, 1957, legally required to return the property it leased to Southern Railway Company to the joint city-county board of tax assessors for ad valorem taxation by the City of Atlanta and/or Fulton County; and that any attempt by the defendant Matthews and/or the defendant Camp to collect the ad valorem taxes and penalties which they contend are due and owing to the City of Atlanta and Fulton County for such tax years will be without legal authority. There is also a prayer that the court by appropriate order temporarily restrain and permanently enjoin the defendant members of the joint city-county board of tax assessors from assessing or attempting to assess petitioner's parcels of land for ad valorem taxation by the City of Atlanta and/or Fulton County while they are leased to Southern Railway Company for railroad purposes, and that the court by appropriate order temporarily restrain and permanently enjoin the defendant Mattews, as Municipal Revenue Collector and Ex-officio Marshal of the City of Atlanta and the defendant Camp, as Tax Commissioner and Ex-officio Sheriff of Fulton County, from collecting or attempting to collect by levy and sale of petitioner's property the taxes and penalties they claim are due by it to the City of Atlanta and Fulton County. The defendants demurred generally to the amended petition. Their demurrers were overruled and there is an exception to that judgment. Held:

1. The General Assembly at its regular 1952 session adopted a resolution proposing that Art. XI, Sec. I, Par. VI of the Constitution of 1945 (Ga.L.1952, p. 591, Code, § 2-7806) be amended by adding thereto the following: 'The General Assembly of Georgia Shall have the power by general, local or special law applicable to all counties having therein the greater part of a city with a population of 300,000 or more, according to the United States census of 1950 or any future United States census, and to said city including any portions which lie in one or more counties, without regard to the uniformity provisions otherwise contained in this article, section, and paragraph of this Constitution, to: (a) Provide for the establishment of a board of tax assessors, and to define the jurisdiction, powers and duties thereof * * * (b) Authorize said board to assess all taxable property in the county and in the city for taxation by either for all purposes which is now or may hereafter be authorized by law * * * (c) Create a board of tax appeals and equalization, by whatever name designated, and to define the jurisdiction, powers and duties thereof * * * (d) Authorize or direct appropriations by the county or the city, or by both, or provide otherwise, for the support of the board or boards created by the General Assembly.' The proposed amendment also provides that 'The authority conferred on the General Assembly by this amendment shall be retroactive to January 1, 1952. Any Act passed after January 1, 1952, germane to the subject matter of this amendment, shall be conclusively presumed to have been passed under the authority of this amendment. It is declared that the authority conveyed to the General Assembly by this amendment relates to only one general subject matter, and the General Assembly is empowered, but not directed, to exercise such authority by one law pertaining to all or any one or more of said functions, which law may be passed prior to the submission of this amendment to the people.'

The proposed amendment was submitted to the qualified voters of Georgia at the November general election of 1952. A majority of the votes cast were in favor of its ratification and the Governor by proclamation declared it to be a part of the Constitution of 1945. Before the proposed amendment was ratified, the General Assembly passed an act conforming in all respects to the provisions thereof which the Governor approved on February 15, 1952 (Ga.L.1952, p. 2825). Section 1 of that Act declares that these terms when used in the act shall have the following definitions unless a different meaning clearly appears from the context: "City' shall mean the largest municipality located completely or in part in any county to which this Act shall be applicable. 'County' shall mean any county in this State having within its boundaries all or the greater part of the population of a city or municipality with a population of 300,000 or more, according to the United States census of 1950 or any future United States census.' Section 2 of the Act created a joint city-county board of tax assessors for the entire territorial area of the city and county in all of those counties to which the Act is or may later become applicable. Section 5 provides: 'Said joint board of tax assessors shall have all the duties, powers and authority given to county tax assessors in Chapter 92-69, Code of Georgia, as amended, in carrying out the purposes of this Act.' Section 10 of the Act provides: 'If the joint board of tax assessors finds that any taxpayer has failed to return his property or has omitted from the return and property that should have been returned or has undervalued any property, said board shall have all the powers with respect to such returns provided by general law for the county board of tax assessors and shall proceed as therein provided to require correct returns.' Section 11 of the act creates a board of tax appeals and equalization and provides for the selection of its members and defines its jurisdiction. Other sections of the Act confer upon the joint city-county board of tax assessors all of the jurisdiction, powers, and duties which the proposed amendment to the Constitution authorized.

By an Act approved March 2, 1953 (Ga.L.1953, Jan.-Feb. Sess., p. 2792), the legislature amended the Act by striking the provision which created a board of tax appeals and equalization, substituting therefor the following provision: 'Any taxpayer dissatisfied with the action of the joint city-county board of tax assessors shall have the right to demand arbitration as provided in Chapter 92-69 of the Georgia Code of 1933 as amended.' The Act was again amended in 1958 (Ga.L.1958, p. 3390) so as to give expressly to the board all of the power and authority conferred on county boards of tax assessors by §§ 92-6910 to 92-6916 of the Code of 1933, as amended.

2. We will first deal with the attacks which the plaintiff made on the validity of the 1952 amendment to Art. XI, Sec. I, Par. VI of the Constitution (Code § 2-7806). It is alleged in the petition, as amended, that the amendment did not become a part of the Constitution of 1945 because (1) it offends Art. I,...