Vincent v. Poole

• Decision Date: 19 February 1936
• Docket Number: 10879.
• Citation: 184 S.E. 269,181 Ga. 718
• Parties: VINCENT v. POOLE, Sheriff, et al.
• Court: Georgia Supreme Court

184 S.E. 269

181 Ga. 718

VINCENT v. POOLE, Sheriff, et al.

No. 10879.

Supreme Court of Georgia

February 19, 1936

Syllabus by the Court.

1. Under the allegations of the petition, the papers levied as tax fi. fas. in this case were void.

2. In the circumstances alleged, the petitioner is entitled to restrain the levy and sale of her property by injunction. The court erred in sustaining the demurrer and dismissing the action.

Error from Superior Court, Pickens County; J. H. Hawkins, Judge.

Petition by N. O. Vincent against J. M. Poole, Sheriff, and others. To review a judgment dismissing the petition on general demurrer, plaintiff brings error.

Reversed.

J. H Paschall, of Calhoun, for plaintiff in error.

Roscoe Pickett, of Jasper, for defendants in error.

RUSSELL Chief Justice.

We are of the opinion that the case stated in the petition clearly entitled the petitioner to ask the court to enjoin the sale of her property as advertised, and thereby prevent the trouble and expense as well as the possibility of future further litigation. Two questions are presented. The first is whether the tax fi. fas. are void; and the second is whether if they are void, injunction is the proper remedy. The case was dismissed on general demurrer. In the petition the plaintiff alleged that she owned certain land in Pickens county; that for the years 1929 and 1930 she failed to return this land for taxes; that on April 15, 1933, the defendant Stancil, the tax collector of Pickens county, notified her that no returns had been made of said land for taxes for said years, and that she had twenty days in which to make returns of said property for taxes; that on May 3, 1933, she made out a return of said property for taxes, and offered to file it with Stancil, the tax collector, but he refused to accept it and proceeded to make a return of the property himself and to double-tax the property, and issued the alleged tax executions; that Poole, the sheriff, was advertising her property for sale under these executions, which she alleged were void; that her property had been illegally double-taxed and that she was entitled to come into equity and have the sale enjoined, and to have canceled the so-called tax executions alleged to be illegal.

1. We are of the opinion that the so-called tax executions were void. We have not been able to find any law that gives the tax collector authority to assess and double-tax property except as the Code of 1933, § 92-6602, and that only in a case where the owner is unknown. In the case at bar the owner was known. The tax receiver may assess and doubletax property which has not been returned (section 92-6601), but apparently there is no authority authorizing tax collectors to do either except in section 92-6602, and that is where the owner is unknown. This court has repeatedly held that "statutes levying taxes should be construed most strongly against the government and in favor of the citizen." Trustees of First Methodist Episcopal Church v. Atlanta, 76 Ga. 181, 190. In Johnson v. Christie, 64 Ga. 117, 121, Mr. Justice Bleckley held: "Where the comptroller-general has issued a fi. fa. for taxes against certain land as wild, the sheriff ought not to levy and sell, if the fact be that the land is not wild but improved." See, also, McIntyre v. Harrison, 172 Ga. 65, 157 S.E. 499, 504. "Statutes levying taxes on the inhabitants of this state will not be extended by implication."

2. We are of the opinion that the learned trial judge erred in holding (by dismissing the petition upon demurrer) that injunction was not an available remedy to prevent the sale of the petitioner's property which had been levied on and advertised for sale by the sheriff of Pickens county. It is true that as a general rule there can be no judicial interference to hinder or delay the state in the collection of taxes. Code 1933, § 92-7901; Decker v. McGowan, 59 Ga. 805, 806. But, as pointed out by Judge Bleckley in the Decker Case, there are exceptions to the general rule just stated, and we are clear that the facts stated in the petition in this case bring it within a well-recognized exception. As said by Judge Bleckley: "Nothing is a tax but what has the nature of a tax, and is imposed by some law. For an officer to exact money, under the name of a tax, when there is no law to warrant the exaction, is not an attempt to collect taxes, but an attempt to collect something else; and the rule which excludes interference in the collection of taxes does not apply. * * * With the aid of formal logic, the foregoing examples, and others that might be put, may be generalized thus: Every claim for taxes is reducible to a syllogism of which the major premise is a proposition of law, involving the officer's authority, and the minor, a proposition of fact; if the citizen disputes the major premise, and is in the right, he has a case in which judicial interference is not prohibited; but if he controverts the minor premise only, he has no case for a court, but must pay the tax, and depend for redress on action against the officer, or on petition to the general assembly. One of the examples, brought into syllogistic expression, will suffice for all purposes of illustration: (Major)-The tax on practicing lawyers is ten dollars each. (Minor)-You are a practicing lawyer. (Conclusion)-Therefore, you are taxed ten dollars." This language was approved by the court in Wright v....