State v. Callaway

• Decision Date: 04 March 1922
• Docket Number: 2380.
• Parties: STATE ET AL. v. CALLAWAY ET AL.
• Court: Georgia Supreme Court

111 S.E. 563

152 Ga. 871

STATE ET AL. v. CALLAWAY ET AL.

No. 2380.

Supreme Court of Georgia

March 4, 1922

Error from Superior Court, Richmond County; H. C. Hammond, Judge.

Suit by the State and others against E. H. Callaway, executor, and others. Judgment for defendants on demurrer, and plaintiffs bring error. Affirmed in part, and reversed in part.

On July 28, 1919, the tax receiver of Richmond county made assessments for taxation of certain corporate stocks and bonds belonging to the estate of J. B. White, late of Richmond county, this state, who died testate in 1917. The assessments were for the years 1911 to 1917, both inclusive. White had not returned these securities assessed by the receiver for any of those years, nor had Callaway, as executor of his will, returned the same. The executor, being dissatisfied with the assessments made by the receiver, as they were in his opinion excessive, demanded that the matter of such assessments be submitted to arbitration in accordance with the act of 1910 (Georgia Laws 1910, p. 22) codified in Political Code, § 1116 (d). Thereupon the executor chose an arbitrator, the tax receiver chose another, and, these two being unable to agree upon the assessments and upon an umpire, the county commissioners of Richmond county appointed an umpire. On September 2, 1919, the state, for itself and in behalf of Richmond county, presented to the judge of the superior court of that county a petition to enjoin the arbitration proceeding, on the ground of alleged disqualification of two of the arbitrators, and because they had not taken oaths applicable to arbitrations under the act of 1910, above referred to. The judge refused, on the last-mentioned date, to grant an interlocutory injunction and denied a supersedeas. The petitioners excepted to such rulings, and upon a review of them by writ of error this court affirmed the rulings made by the trial judge. State v. Callaway, 150 Ga. 235, 103 S.E. 792. Afterwards and on the same day the interlocutory injunction and supersedeas were denied, the arbitrators had a meeting, at which all parties at interest, including the state and the county, were present by counsel, introduced evidence, and submitted arguments. At this meeting no objections were urged to the arbitration proceedings. An award was made immediately after the hearing. Four days thereafter, September 6, the state for itself and in behalf of the county, filed the petition now under review, which is supplementary to the original petition noted above, to set aside the award, the grounds of the petition being in substance that no evidence was introduced before the arbitrators as to the true value of the property assessed, except that submitted by the state and county, which showed the value of the property to be something like ten times as much as the valuation placed upon it for taxation in the award, and that the arbitrators had not confined themselves, in making the award, to the true value of the property, but considered evidence tending to show that a very large percentage of the owners of similar property residing in Richmond county, and other counties in the state, and particularly in the counties of Bibb, Chatham and Fulton, had returned a very small percentage of it for taxation, and, where returns had been made, the assessments on it were insignificant.

At the appearance term the executor demurred to this petition on various grounds, which, in the view we take of the case, are not necessary to be set forth. At the same time the executor filed a cross-petition to have declared illegal and void a certain contract, which was set out, made by the county of Richmond with Pierce Bros. to pay them certain commissions on taxes which they might collect on unreturned property alleging that these attorneys had represented the county from the inception of the proceedings to have assessments for taxation of the securities owned by White for the years 1911 to 1917, both inclusive, and were directly interested in the result of the proceedings. The cross-petition also sought to have declared void a contract made by the state with Pierce Bros. and A. L. Franklin, of a similar character as that made by the county of Richmond with Pierce Bros.; it being alleged, in substance, that both of such contracts were contrary to public policy and the law of the state, and therefore illegal. On a hearing the demurrer of the executor to the supplemental petition was sustained, and the petition was dismissed. The demurrer to the cross-petition was overruled. Petitioners in the supplemental petition, by writ of error, excepted to both of such rulings.

R. A. Denny, Atty. Gen., and Pierce Bros., A. L. Franklin, and Wm. K. Miller, all of Augusta, for plaintiffs in error.

Callaway & Howard, of Augusta, for defendants in error.

FISH C.J., and HINES, J.

The act of 1918 (Georgia Laws 1918, p. 232), approved July 31, 1918, is in part as follows:

"That when the owner of property has omitted to return the same for taxation at the time and for the years the return should have been made, or having returned his property or part of the same, has grossly undervalued the property returned, or his property has been assessed for taxation at a figure grossly below its true value, such owner, or, if dead, his personal representative or representatives, is required to return such property for taxation for each year he is delinquent, whether delinquency results from failure to return or from gross undervaluation, either by the delinquent or by assessors, said return to be made under the same laws, rules, and regulations as existed during the year of said default, or said property was returned or

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