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BAGWELL, Commissioner, et al. v. CASH et al.
HEAD, Justice.
Injunction. Before Judge Frankum. Hall Superior Court. March 25, 1950.
1. "Powers of all public officers are defined by law, and all persons must take notice thereof. The public may not be estopped by the acts of any officer done in the exercise of a power not conferred." Code, 89-903.
2. County boards of tax assessors are limited by law in the employment of agents. Such agents may be employed to seek out unreturned property for taxation. They may be paid a commission not exceeding 10% of the county and school tax on returned property placed on the digest "by the efforts of said agents." Code (Ann.), Chapter 92-69, 92-6910 (Ga. L. 1913, p. 123, as amended, Ga. L. 1937, p. 517). The Board of Tax Assessors of Hall County cannot delegate its duties pertaining to the equalization of property valuations for ad valorem taxation, nor can the board contract for services of the nature stipulated in the contract executed by the board.
3. The Board of Commissioners of Roads and Revenues of Hall County has neither express, nor implied authority to contract with reference to any of the powers and duties of the Board of Tax Assessors of Hall County. Ga. L. 1935, p. 661; Decatur County v. Roberts, 159 Ga. 528 (126 S. E. 460).
4. Constitutional questions will not be decided by this court unless a ruling thereon is essential in the determination of the cause.
5. The trial court did not err in overruling the demurrers to the petition.
W. G. Cash and others, as citizens and taxpayers, brought an action against A. D. Bagwell, Joe Chandler, and R. W. Parks, as Commissioners of Roads and Revenues of Hall County (hereafter called the commissioners), Feed Stringer, J. T. Morrow, and Hoyt Truelove, Tax Assessors of Hall County (hereafter called the assessors), and Geo. G. Ehrenborg Company of Dallas, Texas (hereafter called the company), alleged to be a non-resident, but with an agent in the county upon whom service of process could be had. In brief, the petitioners alleged: The commissioners and the assessors have entered into a contract with the company, a copy of the contract being attached as an exhibit and made a part of the petition. The commissioners have agreed to pay the company, in specified payments, $33,500 from the treasury of Hall County. Neither the commissioners nor the assessors have authority in law to enter into the contract, and it is illegal, ultra vires, and void. The effect of the contract is to employ the company to seek out unreturned, taxable property, and to re-evaluate all property in the county. The time of payment of the contract price is contingent upon other services to be performed by other parties, is indefinite and uncertain, and amounts to an attempt to create a debt against the county in violation of the Constitution, art. 7, sec. 7, par. 1. A tax can not be levied under the Constitution, art. 7, sec. 4, par. 1, to pay for the services provided by the contract. The petitioners prayed that their petition be filed as an action in equity, that the defendants be temporarily and permanently enjoined from carrying into effect the terms of the contract, for process, and for other relief.
Under the terms of the contract, as shown by the copy attached to the petition, the company agrees to furnish the services of experts for the appraisal and valuation of all lots, tracts, and parcels of land in Hall County, together with all improvements located thereon, outside the corporate limits of the City of Gainesville. The report of the company is to include a detailed valuation of all machinery and industrial plants, and all personal property used in the operation of any business. The company is to furnish the assessors with sectional maps, drawn to scale, together with abstract books, showing the separate and individual ownership and valuation of all lands and improvements thereon. It is provided that the company and its employees are not to act as tax assessors, but that all findings and estimates of valuation are to be used by the assessors as they deem best. All final decisions as to valuations and procedures to be followed are to be made by the assessors. The company agrees to furnish competent, expert representatives to testify as to valuations in case of protests filed, and in case of litigation to furnish such expert testimony, on a per diem basis. The company is to be paid in instalments the sum of $33,500 out of increased or additional assessments and corrected returns on property for the year 1949, as a result of services rendered by another auditing and tax-consultant firm. It is further provided that, if the contract shall be declared void, no payments made prior to such judgment would be refunded. The company is to furnish a performance bond, the premium to be paid by the county.
The general and special demurrers to the petition were overruled, and the exception is to that judgment.
DUCKWORTH, C. J., concurring specially. I fully concur in all that is said in the opinion, but certain contentions made in the motion for a rehearing should be met and to do that is the purpose of this special concurrence. The motion asserts that the opinion here is in conflict with the decision in Tietjen v. Major &c. of Savannah, 161 Ga. 125 (129 S. E. 653), and that we should overrule one of them. In that case the contract entered into by the city was, by this court, held to have been authorized by quoted charter power. Here there not only is no statutory power to execute the contract involved, but, on the contrary, the statute, Code, Chapter 92-69, expressly prescribes the acts called for by the contract as duties of the tax assessors, and it fixes the compensation the assessors shall receive from the county treasury for such services. Thus, by laying this duty upon the assessors, the law denies power to either the assessors or county commissioners to pay again for that specific service as is undertaken by the contract here assailed. In principle what we now hold was held in Decatur County v. Roberts, 159 Ga. 528 (126 S. E. 460), where it was held that the statute therein conferring authority upon assessors to perform specific acts negatives any implied power of the county commissioners to perform the same acts.
Stow & Royal and G. Fred Kelley, contra.
A. R. Kenyon and Kenyon, Kenyon & Gunter, for plaintiffs in error.
Judgment affirmed. All the Justices concur. Duckworth, C. J., concurs specially. JULY 11, 1950. REHEARING DENIED JULY 24, 1950.
Saturday May 23 05:47 EDT

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