McGregor v. Hogan
| Decision Date | 19 May 1922 |
| Docket Number | 2743. |
| Parties | MCGREGOR v. HOGAN, SHERIFF, ET AL. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Section 6 of the act of 1913 (Acts 1913, p. 123) known as the tax equalization act provides that where, in the opinion of the board of county tax assessors, any taxpayer has omitted from his returns any property that should be returned, or has failed to return any of his property at a just and fair valuation, the board shall correct said return and shall assess and fix the just and fair valuation to be placed on the property and shall make a note thereof and attach the same to the returns. It is also the duty of the board, when any corrections, changes, and equalizations shall be made by the board, to immediately give notice to any taxpayer of any changes made in his returns in the manner specified in the act; and, if the taxpayer is dissatisfied with the action of the board, he may, within 10 days from the giving of the notice in case of residence, and within 20 days in case of nonresidence in the county, give notice to the board that he demands an arbitration, giving at the same time the name of his arbitrator; the board shall name its arbitrator within three days thereafter; and these two shall select a third, a majority of whom shall fix the assessment on the property on which the taxpayer shall be taxed, and the decision of the arbitrators shall be final, etc. Held, that the provision in section 6 of the act of 1913 providing for notice to the taxpayer and his right to arbitration affords him due process of law, and this section of the act in and of itself is not violative of the due process clauses of the state and federal Constitutions.
(a) A taxpayer whose property has been given in by himself for taxation, which has been raised in amount by the tax assessors of the county, who notify the taxpayer as required by the act, and who fails to ask for an arbitration as therein provided, is not deprived of due process of law under the state and federal Constitutions.
(b) In a case where the taxpayer has asked for arbitration, and arbitrators have been appointed and they fail to agree on an award within the 10 days provided by the statute, the question as to whether such effort at arbitration would deny the taxpayer due process of law is not raised under the facts of this case.
Under article 7, § 6, par. 2, of the Constitution of the state, the objects for which taxation may be levied by a county are enumerated, but there is no limitation in the Constitution upon the taxing power of a county in regard to the amounts to be levied for these authorized purposes; the amount to be levied for each purpose is under legislative control.
Under sections 514 and 515 of the Civil Code of 1910, the ordinaries or other county authorities having the duty of assessing the county tax for each year are directed to levy and assess such taxes by order and enter the same on their minutes, which must specify the per cent. levied for each specific purpose, and to advertise immediately a copy of such order for 30 days at the door of the courthouse and in a public gazette. Such provision with reference to advertising the copy of the order is directory, and not mandatory, and a failure to comply with such provision will not render the tax levy and assessment void.
Additional Syllabus by Editorial Staff.
Where a county tax levy levied "$16 per $1,000 on $3,476,074 which will net $55,616," it was not error, in a suit to enjoin a tax execution and have the assessment declared void to permit the levy to be amended to state the amounts levied for different purposes.
A tax for building or repairing courthouses, jails, bridges, or ferries, or other public improvements, according to contract and to pay expenses of supporting the poor, is not within Civ. Code 1910, § 508, requiring recommendation of a grand jury to warrant an additional tax of 50 per cent.
A county tax levy in excess of the state's tax was not excessive and illegal under Civ. Code 1910, § 507, where the county had no accumulated debts, and no debt was created.
Error from Superior Court, Warren County; E. T. Shurley, Judge.
Suit by C. E. McGregor against G. P. Hogan, Sheriff, and others. Judgment granting insufficient relief, and plaintiff brings error. Affirmed.
C. E. McGregor, for himself and on behalf of such other taxpayers of Warren county as were similarly situated, filed an equitable petition against C. P. Hogan, the sheriff of Warren county, J. T. Scruggs, the tax collector of Warren county, D. E. Johnson, the sole commissioner of roads and revenues of Warren county, and C. A. Wheeler, H. F. Norris, and S. A. Ray, composing the county board of tax assessors of Warren county, praying that the sheriff of Warren county be enjoined from levying a certain tax execution issued against him upon any of his property, and from proceeding further with the tax execution in an effort to collect the same, and that the assessment made by the tax assessors of Warren county be declared null and void, etc. From the record it appears that C. E. McGregor returned for taxation for the year 1920 in Warren county 2,907 acres of land at a valuation of $12,500. The board of tax assessors of that county, without giving the plaintiff any previous notice, raised the valuation of the 2,907 acres of land to the sum of $23,560; and it was alleged that the increased assessment was more than the true market value of the land. Plaintiff was not given any notice or opportunity to appear before the board of tax assessors to object to or protest against the increased assessment before it was made. It was also alleged that the action of the board of tax assessors was not done in obedience to any order of the state tax commissioner, but was executed by the tax assessors in conformity and by virtue of the Georgia tax equalization act (Laws of 1913, p. 123 et seq., and as contained in sections 1116[g]-1116[p], inclusive, of Park's Annotated Code of Georgia); that the Georgia tax equalization act, as contained in section 6 thereof, is unconstitutional in that it fails to provide for a notice and hearing before the tax assessors and before the increased assessment is made upon the property of plaintiff, and is violative of the due process clauses of both the state and federal Constitutions; that the increased assessment placed upon plaintiff's property was illegal in that it was confiscatory; and that some time during the year 1920 the commissioner of roads and revenues of Warren county did assess and levy the rate of taxes for the year 1920, as follows: "$16 per $1,000 on $3,476,074, which will net $55,616." It was alleged that such levy was void:
(a) Because the county commissioner did not enter the same upon the minute book, and because the commissioner did not keep any minute book of his acts and doings.
(b) Because it failed to specify the per cent. levied for each specific purpose as enumerated under section 513 of Park's Annotated Code of Georgia, as required by section 514 of the Code of 1910, which provides as follows:
(c) Because the rate the commissioner attempted to assess for the year 1920 was more than 100 per cent. of the state tax of five mills, and four-tenths of 1 per cent. to work the roads and repair the bridges in the county for the year 1920.
(d) Because the tax levy was not advertised before the courthouse door for any length of time, nor was it published in any newspaper, as required by law.
(e) Because the county of Warren had adopted the alternative road law as contained in sections 694-704 of the Code of 1910, and the same had not been repealed or abolished, which law was binding upon the county commissioner during the year 1920, and under which law the public roads of Warren county were established, worked, and maintained during the year 1920.
All of the defendants filed answers, admitting certain paragraphs of the petition and denying others; but the defendant D. E Johnson, who was the sole county commissioner, averred specially as follows: As to the allegation that the return of the 2,907 acres of land for $12,500 was at its true market value, for want of information he could neither admit nor deny. He admitted the allegation in paragraph 7 that the county tax assessors did, without notice to the plaintiff and without his previous knowledge, increase the valuation upon the 2,907 acres of land to $23,256, but denied that this was more than the true market value of the land. Answering further, he says that the county tax assessors did, within the time required by law, after they had raised the tax assessment, make a note of the same and attached it to the plaintiff's return, and immediately notified him personally of the change and increase in his return. He admits the allegations in paragraph 8 of the petition, but averred that the plaintiff was notified by the assessors of the raise in his return after the same was made, and that this notice complied fully with the statute in such cases. Answering paragraph 9, defendant averred that the state tax commissioner did not order any per centum increase in the tax returns of Warren county, but did order the county tax assessors to increase the tax returns of such individual citizens of the county as in their judgment were too low. He denied the allegation in paragraph 10, and averred that the Georgia tax equalization act is not unconstitutional for the reasons alleged in that paragraph, nor is it violative of the ...
To continue reading
Request your trial