State ex rel. Board of Public Ed. for City of Savannah and Chatham County v. Johnson

• Decision Date: 05 December 1958
• Docket Number: No. 20255,20255
• Citation: 106 S.E.2d 353,214 Ga. 607
• Parties: The STATE of Georgia ex rel. BOARD OF PUBLIC EDUCATION FOR the CITY OF SAVANNAH AND the COUNTY OF CHATHAM, v. J. Archie JOHNSON, Chatham County Tax Commissioner.
• Court: Georgia Supreme Court

Page 353

106 S.E.2d 353

214 Ga. 607

The STATE of Georgia ex rel. BOARD OF PUBLIC EDUCATION FOR the CITY OF SAVANNAH AND the COUNTY OF CHATHAM, v. J. Archie JOHNSON, Chatham County Tax Commissioner.

No. 20255.

Supreme Court of Georgia.

Dec. 5, 1958.

Syllabus by the Court.

Mandamus will not be granted when the performance which was sought as an official duty cannot be compelled under applicable statutory law. Mandamus is not an appropriate remedy to compel a general course of official conduct to be performed under varying conditions over a long period of time.

The State of Georgia, on the relation of the Board of Public Education for the City of Savannah and the County of Chatham, filed a petition for mandamus against J. Archie Johnson, as Chatham County Tax Commissioner, on February 7, 1958, and on the same date the judge of the superior court 'ordered that an alternative writ of mandamus issue,' and that the respondent show cause on a date set for hearing why he has not complied with the alternative writ. On March 3, 1958, the respondent filed general and special demurrers to the petition, and an answer. On April 21, 1958, the relator (the plaintiff in error) filed a motion to make the mandamus absolute. On the same date the trial judge sustained the special demurrers of the respondent and allowed ten days for the relator to amend; and on the same date denied the motion to make the mandamus absolute.

On April 30, 1958, the relator's amendment was allowed and ordered filed, subject to demurrer. On May 14, 1958, the respondent filed a renewal of his general demurrer, and additional special demurrers, to the amendment. On August 21, 1958, the relator filed an additional amendment striking certain exhibits to its petition as amended. On August 25, 1958, the judge passed an order reciting that the renewed and additional demurrers of the respondent to the relator's petition had been considered, and that the petition as finally amended failed to set forth a cause of action upon which rule absolute should issue.

The bill of exceptions assigns as error the judgment entered on April 21, 1958, denying the motion to make the mandamus absolute, and the order dated August 25, 1958, sustaining the renewed and additional demurrers of the respondent and dismissing the relator's petition.

In so far as germane to the relief sought, the relator's petition alleged: It is a body politic and corporate, created and existing under the laws of Georgia, it exercises control and management of the public schools of the City of Savannah and the County of Chatham, and is entitled to demand and receive taxes levied and collected for educational purposes. The Constitution, art. 9, § 4, par. 1 (Code, Ann., § 2-7501) requires the levy of tax of not less than five nor more than fifteen mills for educational purposes. This tax in Chatham County and the City of Savannah shall be levied as recommended by the relator. The office of Tax Receiver in Chatham County has been abolished and the duties formerly belonging to that office were imposed upon the respondent, who is the Tax Commissioner of Chatham County. The law requires that the person making a return shall state the true value of all property reported by him. In Chatham County the person making a return does so in accordance with a 'system' wherein he neither reads, nor hears read, and does not consider, any list of questions. The law requires that the respondent submit a list of questions, which, if answered, would reflect the kind, character, and fair market value of all taxable property owned by the taxpayer. The list of questions contemplated by law appears on the form of the tax return, but the respondent fails to present this list as required by law. (A copy of the return in use is attached as an exhibit.) The laws of the State not only require that the person making the return shall consider all questions applicable to him, but the tax receiver is required to administer an oath under the provisions of Code, § 92-6216. Code, § 92-6217 requires that the tax receivers of the several counties shall actually administer the oath required by § 92-6216. The respondent does not administer the oath required by law. It is neither read to the property owner in the presence of and in the hearing of the respondent; nor by him in the hearing and presence of the property owner. The taxpayer is presented with a return previously prepared. In response to the instruction to 'sign here', the person making the return does nothing more than sign his name. The failure of the respondent to execute the duties imposed upon him results in a systematic exclusion from the returns of taxpayers in Chatham County of a part of the value of property returned. The respondent fails to perform the duties imposed upon him by the homestead exemption laws, in that he systematically applies the $2,000 exemption to the reduced value, rather than applying it to the true value, as required by law. In so far as the relator has been able to determine, residential property in Chatham County is supposedly assessed at 25% of its market value, and under such circumstances a homestead exemption of $8,000 is thereby granted. The relator has a clear legal right to have the property subject to taxation in Chatham County returned in the manner provided by law, and the respondent is under a clear legal duty to perform the necessary acts. The relator is without an adequate remedy at law, unless it be by action of the court granting its writ of mandamus.

It is prayed that mandamus issue requiring the respondent to: (a) present a list to each person making a tax return for himself, or as agent, as required by law; (b) actually administer to each person making a return of taxable property the oath required by law; (c) have all property returned upon the basis of what the person making the return determines is the fair market value thereof; and (5) apply the homestead exemption, where applicable, to the true value of the property.

In his answer the respondent admits that he is required to perform certain ministerial duties, but denies that the principal purpose is to elicit from the taxpayer a declaration by him of the true market value of the property returned. He asserts: The duty rests upon the taxpayer to estimate the value of the property listed on his return. Every taxpayer making the return is presented with a list of questions as set forth on the form of the return, and in the manner required by the statutes. The law does not require the respondent to personally present the list, and personally administer the oath to each taxpayer, these being ministerial acts which may be properly delegated to constituted deputies and assistants. The law...