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HUTCHINS et al. v. HOWARD et al.
CANDLER, Justice.
Injunction. Before Judge Brown, presiding. DeKalb Superior Court. May 14, 1955.
1. The tax receivers or tax commissioners in the several counties of this State are required to open their books for the return of taxes on the first day of January and close them on the first day of April of each year, except that, in counties having a population of 200,000 or more according to the 1940 or any future census, they are to be closed on the first day of May of each year. Code (Ann. Supp.) 92-6201. Within ten days after the date for closing the tax books, it is the duty of the tax receivers or tax commissioners to deliver the tax returns of the county for the current year to the county board of tax assessors. Code 92-6902. "The board [of tax assessors] shall examine all the returns of both real and personal property of each taxpayer, and if in the opinion of the board any taxpayer has omitted from his returns any property that "would be returned or has failed to return any of his property at a just and fair valuation, the board shall correct such returns and shall assess and fix the just and fair valuation to be placed on the property, and shall make a note thereof and attach the same to the returns. It shall be the duty of the board to see that all taxable property within the county is assessed and returned at its just and fair valuation and that valuations as between the individual taxpayers are fairly and justly equalized so that each taxpayer shall pay as near as may be only his proportionate share of taxes." Code (Ann.) 92-6911. It is the duty of the tax assessors to fix valuations "according to the best information obtainable." Code (Ann.) 92-6913. In Hutchins v. Candler, 209 Ga. 415 (2) (73 S. E. 2d 191), we held that the Tax Assessors of DeKalb County could use the information contained in a cadastral survey which had been made for the county if the assessors found it to be the best and most accurate data obtainable for determining just and fair tax values. Realty and tangible personal property are of the same class, and the constitutional rule of uniformity in taxation requires that both be taxed alike. Mayor &c. of Savannah v. Weed, 81 Ga. 653 (11 S. E. 235, 8 L. R. A. 270). "An assessment made in the manner prescribed by the statute is indispensable in proceedings to enforce the collection of taxes." Kirk v. Bray, 181 Ga. 814, 821 (184 S. E. 723).
See also Suttles v. Montgomery, 193 Ga. 125 (17 S. E. 2d 734), where in headnote 2 it is held: "The fact that as a matter of practice the county taxing authorities assessed property at various percentages of its value would not, in a proceeding against them in equity by a taxpayer claiming discrimination because of higher assessments against his property, entitle them to set up a new assessment representing an average of such percentage, since under the equal-protection clause of the State and Federal constitutions he is entitled to the sane treatment as other owners of similar property." The plaintiff's amended petition alleges that the assessment for 1955 taxes against his property, as well as that of other taxpayers similarly situated, is violative of the uniform-taxation clause of our Constitution and the equal-protection clauses of the State and Federal Constitutions. Code 1-515; Code (Ann.) 2-102, 2-5403. The law requires that all real and tangible personal property be assessed at its fair market value. Code 92-5701, 92-5702. It establishes a scheme of administrative machinery to bring this about. 92-6901 et seq. The record in the instant case shows that no property was so assessed. It also shows indisputably that it was not assessed uniformly. And we might well say, as did the Supreme Court of the United States in Greene v. L. & I. R. Co., 244 U. S. 499, 501 (37 Sup. Ct. 673, 61 L. ed. 1250, Ann. Cas. 1917E, 85), that "the duty to assess at full value is not supreme but yields to the duty to avoid discrimination." For want of uniformity in taxable values, the assessments made against the property of the plaintiff, the intervenors, and other similarly situated taxpayers are null and void; they are clearly violative of the uniform-taxation clause of our Constitution and the equal-protection clauses of our present Constitution and the Federal Constitution.
3. There is no merit in the defendants' contention that the plaintiff and the intervenors have an adequate and complete remedy by arbitration. To resort to arbitration under the provisions of Code 92-6912 would be abortive and remediless, since the issue in this case is not as to the correct valuations of the property in question, but whether or not the tax assessors acted without lawful authority in putting into effect a plan or scheme to systematically increase without uniformity the tax payers returns for 1955, in violation of the uniform-taxation clause of the Constitution of 1945, and thereby deprive them of their legal right of equal protection as guaranteed by the State and Federal Constitutions, and since this is an issue of legal question that the board of arbitrators would be without authority to determine, relief could be had only by a petition in equity. In this connection, see Green v. Calhoun, 204 Ga. 550 (50 S. E. 2d 209), and citations.
4. The amended petition alleges that the defendant Williams, individually and as county commissioner, did demand, urge, coerce, and cause the defendant tax assessors to make a systematic and comprehensive increase in the value of all property returned in the county for 1955 taxes, not for the purpose of fixing just and fair values after investigation, or for the purpose of equalizing taxes, but for the sole purpose of raising additional revenue, and that he did, in his dual capacity, conspire and collude with the defendant tax assessors in formulating and executing an all-inclusive plan or scheme to systematically, arbitrarily, and illegally increase the value of all property so returned for 1955 taxes. There is a prayer that the defendant Williams be restrained and enjoined from seeking to have the valuations of the property of the taxpayers of the county systematically increased for the purpose of raising revenue only. As against a general demurrer, we think that these allegations of the petition are sufficient to state a cause of action for the relief sought against the defendant Williams. It is well settled that a petition which is good in substance, though defective in form should not be dismissed on general demurrer. National Bank of Savannah v. Evans, 149 Ga. 67 (99 S. E. 123). See Green v. Calhoun, supra.
5. From what has been ruled in the four preceding divisions, we accordingly hold that the trial judge erred in sustaining the defendant Williams' general demurrer to the amended petition, and also in refusing to grant a temporary injunction.
6. A motion has been made by the defendants in error to dismiss the bill of exceptions in this case, on the ground that the questions presented thereby have become moot. The motion alleges that the tax assessments complained of have been completed by the defendant tax assessors; that the tax digest has been compiled and forwarded to the State Revenue Commissioner; and that it has been approved by him and returned to the defendant Nash, as Tax Commissioner of DeKalb County. There is no merit in the motion to dismiss, and it is therefore denied. All of the action taken by the defendants was subsequent to and in violation of the supersedeas which was granted by the trial judge when the bill of exceptions was certified by him, and such prohibited action does not have the effect of rendering moot the questions brought here for review. The action taken by the defendants was not only prohibited by the supersedeas granted by the trial judge, but was in open defiance of it and therefore a nullity. West v. Shackelford, 135 Ga. 163 (1) (74 S. E. 1079); Prater v. Barge, 139 Ga. 501 (1) (75 S. E. 119); Porcher v. Persons-Taft Land Credit Co., 154 Ga. 453 (1) (114 S. E. 634). Compare Bond v. Long, 133 Ga. 639 (66 S. E. 775).
Herschel H. Hutchins, as a citizen and taxpayer of DeKalb County, on behalf of himself and other similarly situated taxpayers who may wish to intervene in these proceedings, brought an action against Homer H. Howard, Hoyt L. Mostellar, and Edgar Barrett, individually and as members of the Board of Tax Assessors of DeKalb County, W. Fred Nash, individually and as Tax Commissioner of DeKalb County, who performs the duties of Tax Receiver and Tax Collector; Wheat Williams individually and as County Commissioner of DeKalb County; and Jim Cherry, individually and as Superintendent of Schools of DeKalb County. Ray H. Llewllyn, Mrs. Essie Garmon, Carl Garmon, and Betty Ann Garmon, also alleging themselves to be citizens and taxpayers of DeKalb County, were allowed to intervene and become parties plaintiff to the cause. They adopted the allegations of the petition, as amended, and alleged other facts. Wheat Williams and Jim Cherry separately demurred to the amended petition on the ground that it alleged no cause of action against either of them in any capacity. Their demurrers were sustained, and the amended petition was dismissed as to each of them. Error is assigned on the judgment of dismissal as to Williams, but not as to Cherry. Briefly and in substance the amended petition alleges that the defendants, pursuant to a conspiracy between them, arbitrarily, illegally, and in excess of the tax assessors' powers, increased the just and fair return of the petitioner and other taxpayers by adding thereto 15 percent of the valuations of their property without making any inquiry, investigation, or examination as to the present values thereof; and that the overall increase or assessment was not made for the purpose of equalizing values between the taxpayers or fixing fair and just tax values of their property, but for the sole purpose of raising additional revenue for county and school purposes, on demand therefor by the defendants Williams and Cherry. It is also alleged that the defendant tax assessors have not undertaken to fix and equalize tax values between the several taxpayers of the county owning property of the same class, but by use of a formula they have fixed or assessed 1955 tax values for property of the same class which are not uniform and are therefore discriminatory. It is also alleged that the assessments made by the tax assessors for 1955 taxes offend enumerated constitutional provisions. Besides for process and rule nisi, the prayers are for injunction to prevent compilation of the assessments, filing them with the taxing authorities of DeKalb County or with the Comptroller-General or the Revenue Commissioner of Georgia; for a judgment declaring the assessments to be null and void; and for such other equitable relief as may be meet and proper. By their answer, the defendants Howard, Mostellar, Barrett, and Nash denied the material allegations of the amended petition and averred that the plaintiff
and the intervenors have an adequate and complete remedy by arbitration under Code 92-6912. They also averred that the formula employed and used by the tax assessors fairly and justly valued the returned property for taxation and equalized property values among the several taxpayers of the county.
For 1954 and for some years prior thereto, the Board of Tax Assessors for DeKalb County required the taxpayers to return their property at an amount equal to 50 percent of its actual value as determined by a cadastral survey and appraisement made of it by Cole-Layer-Trumble, appraisers. For 1955, like returns were made by the taxpayers, the returns being prepared for them by the Tax Commissioner of DeKalb County. The tax assessors decided to make an overall increase in taxable values for 1955 from 50 percent to 65 percent of actual values. However, they adopted and used a formula for making their increases or assessments which fixed taxable values as follows: where a taxpayer owned his home and had household and kitchen furniture, they increased the value of his realty 30 percent and fixed the value of his household and kitchen furniture at 10 percent of the value of his realty. A lady clerk in the office of the tax assessors testified that she so changed from fifty to fifty-five thousand returns. Where a taxpayer had household and kitchen furniture but no realty, his valuation was accepted and no change was made in his return. In the City of Decatur and in that part of the City of Atlanta which is located in DeKalb County, they assessed the taxable property at 91 percent of the amount assessed by each city for tax purposes; this resulted in an assessed valuation of the property in those areas of the county at 63.7 percent of its value or a valuation of 1.3 percent lower than that fixed for like property in all other areas of the county, including municipalities. Merchandise was assessed at 60 percent of the taxpayer's inventory. The equipment, such as machinery, tools, etc., of a corporation was assessed at 35 percent of its cost, irrespective of purchase date by the taxpayer and without deduction for depreciation. Industrial or income property, such as apartment houses, was assessed on a capitalization basis-that is, according to the income the taxpayer derived therefrom. Farm lands and timbered areas were assessed at 65 percent of their fair market value, but it does not appear from the record that the tax assessors made any investigation as to their present market value. Mr. Howard, one of the tax assessors, testified that all taxpayers' returns were increased in value primarily for the purpose of raising the real estate values of more than 8,300 taxpayers to an amount above his homestead exemption of $2,000. Mr. Barrett, another one of the tax assessors, testified that the increases made by the board would increase the 1955 digest value of the taxpayers' property approximately $50,000,000. The court dissolved the restraining order previously granted and refused to grant an interlocutory injunction. There is also an exception to that judgment.
Pierre Howard, George P. Dillard, contra.
John L. Respess, Jr., James H. Venable, Margaret Hopkins, Augustine Sams, for plaintiffs in error.
Saturday May 23 03:00 EDT

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