Tarver v. City of Dalton
| Decision Date | 27 April 1910 |
| Citation | 67 S.E. 929,134 Ga. 462 |
| Parties | TARVER v. MAYOR, ETC., OF CITY OF DALTON et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
A municipality cannot exempt from taxation property which does not belong to any of the classes which the Constitution of this state permits to be exempted.
(a) A contract between the owner of property in a city and the municipal authorities of the latter, wherein it is provided that no taxes on such property above a specified amount (which is less than the amount of taxes due) shall be collected by the city, in consideration of specified privileges and benefits conferred upon it by the owner of the property, is unlawful and not enforceable.
Where a taxpayer applies for mandamus to compel the municipal authorities to collect, for the years hereinafter referred to, taxes on property located in the city and subject to taxation for year in which such application is filed and for seven years prior thereto, and the answers of the authorities aver that by reason of the contract referred to in the preceding headnote the municipal authorities of previous years collected no taxes during such years except the amount specified in the contract, which was less than the amount of taxes due on such property, and the present municipal authorities, on account of such contract, are willing that no taxes other than such specified should be collected during the year in which such application was filed, and that no other taxes should be collected for previous years, no sufficient facts are averred to show any legal settlement of such taxes, or to show any valid reason why such taxes should not be collected for any of such years.
(a) If the owner of such property has against the city a debt equal in amount to the taxes due by the owner to the city, this fact will not prevent the city from collecting such taxes.
A taxpayer applied for mandamus to compel the municipal authorities to collect taxes on property of a private corporation in the city subject to taxation, and the municipal authorities claimed in their answer that the property was not liable for such taxes by reason of a contract between the city and such private corporation, which had no objection to being made a party defendant to such proceedings. Held, that it was not error, upon motion of the municipal authorities, to make the owner of the property a party to such proceedings.
A motion by the relator to make the mandamus absolute involves the determination of the question as to whether or not the averments in the answers afford a sufficient reason why the mandamus should not be made absolute.
(a) In this case it was error to refuse to make the mandamus absolute; the answers setting up no sufficient reason why this should not be done.
Error from Superior Court, Whitfield County; A. W. Fite, Judge.
Mandamus by Malcolm C. Tarver against the Mayor and Council of Dalton and others. From orders refusing to strike defendants' answers to make the mandamus absolute and making a certain company a party defendant, relator brings error. Reversed debt equal in amount to the taxes due on the property will not prevent the city from collecting the taxes.
Malcolm Tarver, as a citizen and taxpayer of the city of Dalton sought by mandamus proceedings in the superior court of Whitfield county to force a collection from the Crown Cotton Mills (hereinafter called the "mills") of certain taxes alleged to be due the city. The relator alleged that the mills owned a large amount of real estate of the probable value of $500,000, and personal property of great value within the limits of the city, on which it had been illegally exempted from the payment of ad valorem taxes (since 1898 on the property then owned, and since 1902 on property acquired that year), but in lieu of all special and ad valorem taxes it had paid to the city per annum $850 as a fixed commutation tax, in violation of the constitutional requirement embodied in section 5883 of the Civil Code that all taxes 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 tax; that the board of tax assessors of the city had failed and refused to make any assessment of its real property, as required by law, and it had not been subjected to its proportionate part of taxes due from property of the same class; that the city clerk had failed to value the personalty as not returned, as is his duty under the law, and to issue tax executions for the amount of unpaid taxes for the respective years; and that the city council refused to enforce the collection of the taxes due--all of which neglect was for the purpose of exempting the property from taxation other than the $850 commutation tax. Relator prayed that a writ of mandamus issue, directed to the officials above mentioned, requiring them to proceed with the collection of the ad valorem tax on the property of the mills for seven years past, which it had owned for that length of time, and on property acquired by it in 1902 since the date of its ownership. The mayor and council of Dalton sought by petition to have the Crown Cotton Mills made a party defendant, which was done, over the objection of the relator.
All of the defendants filed answers. The tax assessors set out that they had not assessed the realty of the mills for 1908 and 1909, because they had been informed by the clerk that an agreement which the city had with the mills in respect to taxes rendered their doing so unnecessary. The mayor and council answered that the taxes had not been regularly assessed and collected because of an agreement between the city and the mills relative to taxes, a copy of which was attached to the petition. The contract between the city and the mills to which reference is made herein consisted of two agreements, the last entered into May 25 1898, for a period of 25 years; but, for convenience, we speak of the entire agreement as the contract. In the contract in question, the mills granted to the city certain water privileges in connection with a spring and a creek located on its property, stipulating: "In consideration of the privileges and rights by the mills herein granted to the city, the city agrees that the mills shall in no event pay to the city for taxes, general, specific, or privilege, annually, a sum greater than eight hundred and fifty dollars ($850.00); and if at the rate of taxation imposed by the city the taxes upon the mills' entire property, as it is now improved or may hereafter be improved by the erection of additional buildings and the placing of additional machinery or otherwise, the taxes upon said property, including privilege tax, shall exceed the sum of eight hundred and fifty dollars ($850.00), that such excess shall be remitted to the mills as compensation and payment for the privileges granted to the city in this contract, so that the sum to be paid by the mills to the city for taxes of every kind shall in no event during the continuance of this contract exceed the sum of eight hundred and fifty dollars ($850.00) per annum." As an additional consideration, the city guaranteed to the mills a sufficient supply of water for the use of its tenants, engines, boilers, etc. The answer of the mayor and council further averred that they did not have any property right in the spring or creek in question; that they were entirely dependent upon the arrangement with the mills for a water supply for the city, and at present were unable to secure a water supply elsewhere, and it would take a long time to establish waterworks at other points; that they did not wish to terminate the present arrangement with the mills instanter, as this would entail suffering among the people for lack of adequate water supply and subject the city to the danger of a conflagration. They admitted that the taxes of the mills, if regularly assessed, would exceed $850 per annum. They stated that they were not attempting illegally to exempt the mills from taxation, but believed the contract to be binding; and asked, should the court hold it void, that it so frame its decree as to give the city an opportunity to make provision for a water supply. In an amendment the mayor and council further alleged: "That neither the present mayor and council nor any of their predecessors have ever repudiated the contracts between the city and the Crown Cotton Mills as set out in the original answer of file. That the present mayor and council not only have not repudiated the said contract, but do not intend to do so for this year, 1909; defendant being satisfied with the terms of said contract for the present until they can make a more satisfactory contract, and defendant considering that the amount of the taxes which they propose to repay or remit to the mill are a reasonable price to be paid for the benefits the city obtains from said mills under said contract. The present mayor and council, acting on this line, have passed a resolution ratifying the contract for the present year, and, as far as their power lies, ratifying the same for past years, which resolution is as follows: ...
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