Pullman Co. v. Suttles

• Decision Date: 13 October 1938
• Docket Number: 12449,12450.
• Citation: 199 S.E. 821,187 Ga. 217
• Parties: PULLMAN CO. v. SUTTLES, Tax Collector, et al. SUTTLES, Tax Collector, et al. v. PULLMAN CO.
• Court: Georgia Supreme Court

199 S.E. 821

187 Ga. 217

PULLMAN CO. v. SUTTLES, Tax Collector, et al.

SUTTLES, Tax Collector, et al. v. PULLMAN CO.

Nos. 12449, 12450.

Supreme Court of Georgia

October 13, 1938

Rehearing Denied Nov. 25, 1938.

Error from Superior Court, Fulton County; E. D. Thomas, Judge.

Suit by the Pullman Company against T. E. Suttles, tax collector, and others to enjoin the collection of certain taxes. To review an adverse judgment, plaintiff brings error and defendants filed cross-bill of exceptions.

Judgment reversed on main bill of exceptions and affirmed on cross-bill of exceptions

On Motion for Rehearing.

In sleeping car company's suit to enjoin enforcement of tax assessments, stipulation that assessment made by the county authorities was not made on information certified by the Comptroller General would not prevent the sleeping car company from raising the question of due process as to the taxability of sleeping cars in such county, where it was not shown how the use by the county of such outside information in assessing taxes afforded company the right to be heard as to taxability of the property, and validity of assessment, of which right the company had been deprived in the proceedings. Code 1933, § 92-6901 et seq.

The Pullman Company filed in Fulton superior court an equitable petition against the tax-collector, the tax-receiver, and the members of the board of tax-assessors of Fulton County, to enjoin their threatened issuance, levy, and collection of tax fi. fas. and assessments, made by the county board of assessors in 1937 for the years 1930 to 1936, inclusive, on 34 Pullman sleeping-cars, assessed at the value of $340,000 for each year. The amended petition set forth in detail the alleged merely temporary location of this 'rolling stock' in Fulton County, its consequent freedom from taxation by the county, and facts and legal contentions in an attack on the validity of the assessments, the procedure, and the various statutes under which the assessments were made, on grounds that there was no taxable status for such property in Fulton County, and that the procedure and statutes were unconstitutional because in violation of the due-process provisions of the Federal and State constitutions, U.S. C.A.Const. Amend. 14, Const.Ga art. 1, § 1, par. 3, and the interstate commerce clause of the Federal constitution, U.S. C.A.Const. art. 1, § 8, cl. 3. At the hearing on the grant of an injunction, the court denied a motion to dismiss the petition, in the nature of a general demurrer, on the grounds that no equity and no cause of action were set forth; that injunction did not lie before a levy of a tax execution; that there had been no tender of taxes; and that since the plaintiff had not made objection or demanded arbitration, the assessments became final. The undisputed evidence showed that during each of the years in question, and in accordance with the general tax acts of 1927 and 1935 (Ga.L.1927, p. 97; Ga.L.1935, p. 65), codified as general statutes in the Code, §§ 92-2605 and 92-5902, the Pullman Company, a nonresident corporation having its principal office in Illinois, had filed with the comptroller-general of the State detailed returns of its real estate and personal property in Georgia and in particular cities and counties as there stated, including Fulton County giving the values of such real and personal property in the State; and further giving the total value of its sleeping-cars and equipment, wherever owned in or out of the State, and the amount of 'Georgia's proportion' thereof; the total railroad mileage everywhere in or out of the State over which such cars were run, the total value of its properties everywhere in the sleeping-car business, and 'Georgia's proportion' of this. But the returns did not include any amounts as to the value of sleeping-cars or rolling stock located in Fulton or other particular counties of the State.

It was stipulated between the parties that 'a daily average of 34 sleeping-cars belonging to plaintiff were in the territorial limits of Fulton County * * * from day to day during each of the years 1930 to 1936 inclusive, including January 1 of each of the years' involved; that the fair value of such cars amounted to $340,000 that the assessments by the Fulton County authorities were not made on any information certified by the comptroller-general, nor was it made wholly on information obtained from the office of the comptroller-general; and that during the years involved there were different tax rates in different counties of the State, in which there were properties of the Pullman Company, and lines of railroad track over which its cars were operated. The chief clerk of the comptroller-general testified by affidavit without dispute, that while returns had been made, as stated, to that officer during the years in question, and taxes on other properties had been assessed by that officer for county and municipal purposes, no such assessment had ever been made by the comptroller-general for taxation by Fulton County on any of the sleeping-cars or rolling stock in the plaintiff, a proportionate part of which, designated as 'Georgia's trackage proportion' in the State as a whole, had been included in the annual returns; and that no notice as to any apportionment of such cars or rolling stock to Fulton County had ever been given, and no execution had ever been issued to collect such a tax. Receipts were introduced in evidence, showing the payment to the comptroller of State taxes and also the payment to the tax-collector of Fulton County of county taxes during the years involved; but these county receipts admittedly did not include any taxes on sleeping-cars or rolling stock located in Fulton County. As to the location of such cars in Fulton County, and the taxability of any by the county, the affidavit of an officer of the Pullman Company stated: 'We have cars arriving in Atlanta that depart on the same line on the return trip. They lay over a short time, and are cleaned. * * * Occasionally we have a few cars that arrive, in extra service, that stay here a matter of hours, a day or two, awaiting return service to return. They might arrive from New York and might be used to some other point. The cars to which I refer in Fulton County of the Pullman Company are in Fulton County between the time they are used in trains coming in and the time when they are used in trains going out. * * * We have twenty-six daily departures from Atlanta. These cars arrive from other points, some of them leave within an hour after they arrive, others within two hours, and none stay here as much as twenty-four hours. * * * For the last seven years there have been cars belonging to the Pullman Company * * * in Fulton County, which were not in trains, they would stay here from their arrival until their departure.'

Contentions of the plaintiff essential to the rulings made are indicated in the opinion, infra. The defendants contend that the assessments, the procedure, and the statutes involved are valid and constitutional, especially in view of the uniformity provision of art. 7, sec. 2, par. 1 of the State constitution (Code, § 2-5001), requiring that 'all taxation shall be uniform upon the same class of subjects, and ad valorem on all property subject to be taxed within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws;' and in view of the provision against exemption from taxation in par. 4 of that article and section (Code, § 2-5005), that 'all laws exempting property from taxation other than the property herein enumerated shall be void;' and in view of the Code, §§ 92-101, 92-105, making taxable 'all real and personal property,' and requiring that 'non-residents, whether their property in this State is real or personal, shall pay taxes on the same herein.'

After hearing the evidence, the court overruled the motion to dismiss the action, denied the application for injunction, and dissolved the previous restraining order. The plaintiff excepted to the refusal of the injunction. By cross-bill the defendants excepted to the denial of the motion to dismiss.

Howell & Post, of Atlanta, and L. M. Greenlaw and H. S. Anderson, both of Chicago, for Pullman Co.

Walter C. Hendrix, E. H. Sheats, W. S. Northcutt, and Standish Thompson, all of Atlanta, for Suttles and others.

Syllabus OPINION.

JENKINS Justice.

1. One against whom an unlawful exaction in the form of a tax is sought to be made, by virtue of unconstitutional statute or procedure, is entitled to an injunction to restrain its collection, if adequate remedy at law by affidavit of illegality is not provided; and it is not necessary that he first tender any part of the wholly illegal tax, or resort to arbitration under invalid or inapplicable statutes, or await the levy of a tax execution. Harris Orchard Co. v. Tharpe, 177 Ga. 547(2), 170 S.E. 811, 88 A.L.R. 1212; City of Atlanta v. Jacobs, 125 Ga. 523(2), 527, 53 S.E. 534, and cit.; McIntyre v. Harrison, 172 Ga. 65, 72, 157 S.E. 499, and cit.; Wright v. Union Tank Line Co., 143 Ga. 765, 85 S.E. 994; Lane v. Unadilla, 154 Ga. 577(2), 114 S.E. 636; Southwestern Railroad v. Wright, 68 Ga. 311(2), 320; Wright v. Southwestern R. Co., 64 Ga. 783, 789; Vincent v. Poole, 181 Ga. 718, 720, 184 S.E. 269; 61 C.J. 781, § 1005.

2. 'A county, being a corporation created by and existing under the laws of this state, can exercise only such powers as are conferred on it by law; and when it undertakes through its constituted authorities, to exercise the power of taxation in any given manner, a clear and manifest legal right to do so must appear.' Albany Bottling Co. v. Watson, 103 Ga. 503, 30 S.E. 270; Bowers v. Hanks, 152 Ga. 659, 111 S.E. 38, and...