McGregor v. Hogan

¶1(After stating the foregoing facts.)

¶21. The first ground of exception to the opinion holding in effect that section 6 of the tax-equalization act of the State of Georgia (Acts 1913, p. 123 et seq.) is not unconstitutional and void as offending both the State and Federal constitutions, which provide for due process of law, is that section 6 of the act does not provide for any notice to the taxpayer before the assessment is made by the tax-assessors, and that opportunity is not given to the taxpayer to be heard as of right before the assessment becomes final against him. It is insisted that as applied to the facts .of this case the plaintiff is denied due process of law as guaranteed to him by the fourteenth amendment of the constitution of the United States, and by art. 1) sec. 1, par. 3, of the constitution of the State of Georgia. Paragraph 6 of the act of 1913 has been declared constitutional by this court several times. The first case in which it was held not to be obnoxious to the due-process clauses of the State and United States constitutions was Vestel v. Edwards, 143 Ga. 368 (85 S. E. 187) . In that case it was held: “An act of the legislature, which has for its object the equalization of taxation by means of a just and fair assessment of property returned for taxation, and which provides for notice'to any taxpayer whose returns have been increased, and that if he is dissatisfied with the action of the county board of tax-assessors in assessing the value of his property for taxation he may demand an arbitration of the question of the valuation of the property returned for taxation, and which provides that in case of disagreement as to the selection of an umpire the ordinary or the county commissioners, as the case may be, shall appoint one, and the arbitrators shall render their decision within ten days from the date of the naming of the arbitrator by the board, is not repugnant to the due-process clause of the constitution of the United States, as contained in the fourteenth amendment, (a) Nor is it obnoxious to the due-process clause of the constitution of the State of Georgia. (&) Nor does it deprive the taxpayer of the equal *480protection of the laws.” In the body of the opinion it was said: “It has been held that in the matter of taxation due process of law does not require a judicial procedure. And this ruling of the courts was both before and since the adoption of the fourteenth amendment to the constitution of the United States. Judson on Taxation [1st ed.], § 318 [2nd ed. § 340], And this ruling is based on the ground that revenues must he collected without delay, and can not await the decision of a common-law trial. Of necessity the sovereign must proceed in a somewhat summary way to collect taxes. Ibid. And while notice can not be dispensed with in cases where the tax is dependent on valuation of the property, and is not specific, the legislature may prescribe the kind of notice and the manner in which it shall be given. Judson on Taxation, § 321. See Turpin v. Lemon, 187 U. S. 51 (23 Sup. Ct. 20, 47 L. ed. 70). In Pittsburg &c. Ry. Co. v. Backus, 154 U. S. 421 (14 Sup. Ct. 1114, 38 L. ed. 1031), it was held: ‘A tax law which grants to the taxpayer a right to be heard on the assessment of his property before final judgment provides a due process of law for determining the valuation, although it makes no provision for a rehearing/ In McGehee on Due Process of Law, 239, it is said: ‘ Since proceedings for the assessment and collection of taxes were in constant use long before the adoption of the constitution, and have been necessarily employed by the Federal government and the various States ever since their formation, the rule that whatever proceedings are in accord with settled usage in England and in this country constitute due process is peculiarly applicable to test the sufficiency of notice and hearing required in such cases/ In conformity with this principle, it has been held that the process of taxation ‘involves no violation of due process of law when it is executed according to customary forms and established usages, or in subordination to the principles which underlie them/ In Gray on Limitations on the Taxing Power, 577, § 1161, it is said: ‘ Where, before the assessment becomes final, opportunity is given to appear and make proofs before a board of commissioners, or a board of equalization, having authority to hear complaints and proofs and make correction of the assessment, the opportunity is sufficient/ From these authorities, we think it can not be said that the 6th section of the act in question deprives the plaintiff of due process of law, required by the State and *481Federal constitutions; nor do they deprive any taxpayer of the equal protection of the laws. Moreover, the 6th section of the act of 1913 provides that arbitration shall be had ‘ in the same manner-as is now provided for the arbitration of individual tax returns,except in so far as the existing law may be modified by the provisions of this section.’ The existing law on this question is contained in the Civil Code, § 1097 et seq., and in the Acts of 1910, p. 24. The code sections cited do not'provide for the selection of a third assessor, or umpire, except as he may be selected by the two assessors appointed by the tax-receiver and the taxpayer. But the act of 1910 (Acts 1910, p. 24) provides that the tax-receiver may make the assessment if the return of the taxpayer is not satisfactory to him, and the taxpayer, on notice to him within twenty days after receiving such notice, may refer the question of true value to arbitrators, ‘ one to be chosen by himself and one to. be chosen by the tax-receiver, with power to choose an umpire in case of disagreement, and their award shall be final. . . Should the two arbitrators provided for in this section fail to agree upon the value of the property,- and fail to name an umpire within twenty days after their appointment, the umpire shall be named by the ordinary or county board of commissioners, as the case may be.’ Construing this act in conjunction with the code section cited above, it can not be held that the law does not provide for a case where the arbitrators fail to agree, and one or both arbitrarily or capriciously refuse to agree on an umpire. The act of 1910 as ‘modified by the provisions of’ the act of 1913 (Acts 1913, p. 128) provides that in case of disagreement of the arbitrators the ordinary shall appoint the umpire. The disagreement, if any, will at once manifest itself, when application can be made to the ordinary for the appointment of an umpire, who can immediately proceed with his duties. There need be no unnecessary delay in the appointment of an umpire, or in the arbitration proceedings. So that, if the parties avail themselves of it, there is a remedy provided by law whereby the ordinary or county commissioners, as the case may be, can appoint an umpire in case of disagreement of the assessors, and the hearing can proceed without delay.” And see, to the-same effect, Wade v. Turner, 146 Ga. 600 (91 S. E. 690) ; Turner v. Wade, 147 Ga. 666 (95 S. E. 220); Barnes v. Watson, 148 Ga. 822 (98 S. E. 500).

¶3*482The plaintiff cites the case of Turner v. Wade, 254 U. S. 64 (41 Sup. Ct. 27, 65 L. ed. 134), as authority for holding that section 6 of the Georgia tax-equalization act of 1913 (Acts 1913, p. 123) is unconstitutional because it denies the complaining taxpayer due process of law; and because, as argued, the tax assessors were not required to give any notice to the taxpayer of an opportunity to be heard, as a matter of right, before the assessment was made against him. Wé do not understand that the decision of the United States Supreme Court goes to the extent insisted upon by the plaintiff in error. See, in this connection, Ogletree v. Woodward, 150 Ga. 691, 697 (105 S. E. 243). The headnote in the Turner case, supra, is as follows: “ The Georgia tax-equalization act (Laws 1913, p. 123, §§ 6-7), empowers the board of county tax-assessors to assess property for taxation, and requires it to notify the taxpayer of changes made in his returns; it gives him, if dissatisfied, the right to demand an arbitration, and provides that a majority of three arbitrators, one appointed by him, one by the board, and the third by the two so selected, shall fix the assessment; but the arbitrators must render their decision within ten days from the naming of the arbitrator by the board, otherwise the board’s decision — i. e., its assessment — stands affirmed; and no notice is afforded the taxpayer before the making of the board’s assessment, nor any opportunity to be heard concerning it save that before the arbitrators. Held, that an assessment so made by the board of county tax-assessors, increasing the valuation returned by a property owner, without notice or hearing, was without due process of law, where his remedy by arbitration proved abortive because the arbitrators, though agreeing that the assessment was excessive, could no two of them unite on a new assessment before the ten-day limitation expired.” In delivering the opinion of the court in that case Mr. Justice Day, among other things, said: “ In considering certain sections of the Georgia tax laws this court held in Central of Georgia Ry. Co. v. Wright, 207 U. S. 127, that due process of law requires that after such notice as may be appropriate the taxpayer have opportunity to be heard as to the validity of a tax and the amount thereof, by giving him the right to appear for that purpose at some stage of the proceedings.” We do not understand that the decision of the Supreme Court of the United States goes further than to hold that where *483the taxpayer’s remedy by arbitration proved abortive because the-arbitrators, though agreeing that the assessment was excessive, and where no two of them united on a new assessment before the ten-day limitation fixed by the statute expired, under such circumstances the taxpayer was denied due process of law. But such is not this case. Section 6 of the act of 1913 does provide for hearing and an arbitration “ before the tax becomes irrevocably fixed.” It is true it is after the tax-assessors have raised the amount of the return made by the taxpayer.. But before that amount'is irrevocably fixed as the true value of his property, he'is given an opportunity to appoint an arbitrator and have the tax-assessors to appoint another,.and those two can appoint a third; and a majority of the assessors can, after hearing evidence, fix the true value of the property to be assessed. How this deprives a taxpayer of due process of law we are unable to see. It may be that in a case like the Turner case (254 H. S., supra), where the arbitrators failed or refused to agree, and no provision is made for another hearing, in such circumstances it could be held that there was a failure of due process. But before the taxpayer can be heard ! to complain, he must avail himself of the remedy which is pro- . vided by-the statute. In the present case the plaintiff has not ! even attempted to avail himself of the remedy provided in section ; 6 of the act of 1913, and has not asked for an arbitration on the question as to whether the assessment of his land for taxation was too high. There was no attempt to arbitrate on his part, and no failure of the arbitrators to agree, as in the Turner case.

¶4Suppose the plaintiff had asked for an arbitration, and the hearing was had in accordance with his request; that evidence was heard pro and con, and the arbitrators had rendered a judgment fixing the true value of the land of plaintiff in error at the figure at which he gave it in for taxation, or at some other figure; can it be said, in view of the authorities cited in the case of Vestel v. Edwards, and others to the same effect, that the plaintiff has been denied due process of law? We do not think so. We are of’the opinion that he is provided a remedy of,which he can avail himself as a matter of right, and that he can be heard before a competent tribunal and have settled and determined the question as to the true value of the land in controversy. And if he fails to take advantage of the remedy provided him, he can not complain of a *484want of due process of law. We are of the opinion that section 6, supra, is not obnoxious either to the Federal or the State constitution, .as against the objections urged. An act may be constitutional, but if in the administration of the act those who administer it fail or refuse to perform a duty imposed upon them, it can not be said that the act itself is unconstitutional for that reason alone. It was the duty of the plaintiff to have tried out the remedy provided by section 6 of the act of 1913; and if he had tried it out and the'arbitrators had failed or refused, or for honest difference of opinion had failed to agree on the matter' of the true valuation of the land, and the assessment of the hoard of tax-assessors was thus'allowed to stand, it might then be said, as it was said in the Turner ease, that there was a denial of due process of law; and we do not understand that that decision goes further than that. In the Turner case it was said that "The assessment of the board. oE assessors ought to have been enjoined, because section 6 of the' act as construed and applied in this case [italics ours] denies to a complaining taxpayer due process of law.” No decision is broader than the facts upon which it is based, and the facts of the Turner case and those in the’ instant one are not alike. In the Turner case there was an appeal to arbitrators, and the arbitration failed. Here there was no effort on the part of plaintiff to avail himself of the right of a hearing before a board of arbitration; and therefore, where the right of arbitration, which includes a hearing, etc., has been conferred, and the taxpayer merely fails to avail himself of it, he can not be heard to say that he is denied due process of law.

¶52.The proper county authorities of Warren County made the following tax levy for the year 1920: “ Sixteen dollars per thousand on $3,476,074, which will net $55,616,” under which a tax fi. fa. was issued against the plaintiff, who filed a petition in equity against the sole county commissioner of Warren County under the act of 1919 (Acts 1919, p. 773), the sheriff of the county, and the county tax-assessors, to enjoin the levy of the fi. fa., upon the ground that the tax levy was void because it failed to comply with §§ 513 and 514 of the Civil Code of 1910, as set out in the foregoing statement of facts. After the filing of the petition for injunction the court made an order allowing the amendment' to the tax levy, which amendment, so far as material, was as follows: *485“ The following assessments upon the State tax for the year 1920 are levied against all taxable property in Warren County, Georgia, subject to taxation within said county for the year 1920, the same, except the tax for road purposes, support of chain-gang, building and repairing jail and court-house, and support-of paupers, being less than' 50% of the State’s tax for said county, to wit: To pay legal indebtedness of the county due or to become due during the year, or past due, 9/200%. To build or repair court-houses or jails, bridges, or ferries, or other public improvements, according to contract, 11.565%. To pay sheriffs’, jailors’, or other officers’ fees that they may be legally entitled to out of the county, 11.50%. To pay expenses of the county for bailiffs at court, non-resident witnesses in criminal cases, fuel, servant hire, stationery, and the like, 17.95%. To pay jurors a per diem compensation, 11.304%. To pay expenses incurred in supporting the poor of the county and as otherwise prescribed by this court, 12.50%.”

¶6The amendment to the tax levy also included the following: “ Whereas no debt was created, the following tax is levied upon the taxable property of Warren County, Georgia, for the year 1920, for the support of the chain-gang, for machinery for road building, and for purchasing rights of way in co-operation with the State Highway Department, to wit; 245.915%, to net $42,753.32.” To this judgment of the court the plaintiff excepted upon the following grounds: “ (b) Because the original statement which it was contended was a legal tax. levy and subject to the proposed amendment was absolutely null and void, and could not be amended, (c) Because the proposed amendment to the tax levy, as allowed by the judge, was illegal in that the commissioner of roads and revenues of Warren County could not legally levy more than 100 per cent, of the State’s tax to pay the accumulated debts and current expenses and four tenths (4/10) of one per cent, to build and repair the public roads of said county; whereas the proposed amended tax levy, and which was allowed by the court, did levy a tax of sixteen (16) mills in addition to the State’s tax of five (5) mills, which levy was excessive and therefore illegal.” Under the principle ruled in the following cases, the exception to the judge’s order allowing the amendment is without merit. Yow v. Sullivan, 129 Ga. 187 (58 S. E. 662); Garrison v. Perkins, 137 Ga. 744 (74 S. E. 541).

¶7*486The other exceptions to the order are likewise without merit. Under the decision in the case of Sullivan v. Yow, 125 Ga. 326 (54 S. E. 173.), the following items of the tax levy are not included in the provision of the code which requires that the grand jury shall recommend a fifty per cent, additional tax (Civil Code of 1910, § 508), viz:: “To build or repair court-houses or jails, bridges, or ferries, or other public improvements, according to contract: 11.565%. To pay expenses incurred in supporting the poor of the county, and as otherwise prescribed by this code: 12.50%.” Excluding these items from the amended tax levy in the instant case, the remaining items amount to only fifty per cent, of the State tax, exclusive of the tax of 245.915% levied for the “ support of the .chain-gang, for machinery for road building, and for purchasing rights of way in co-operation with the State Highway Department.” Exception is taken to the allowance of the amendment to the tax levy, on the ground that the commissioner of roads' and revenues of Warren County could not legally levy more than one hundred per cent, of the State’s tax to pay the “ accumulated debts ” and current expenses and four tenths of one per cent., to build and repair the public roads of the County of Warren; whereas the proposed amended tax levy did levy a tax of Í6 mills in addition to the State’s tax of 5 mills, which levy was excessive and therefore illegal. The reply to this contention is that the amendment to the tax levy expressly states that there are “ no accumulated debts,” and that “ no debt was created.” In addition to the above, the four tenths of one per cent., to which exception is also taken, was not included in the amended levy. The defendants insists that the County of Warren is not working the roads of that county .under the alternative road law, and therefore that the four tenths of one per cent, authorized by that law to be levied is not applicable. Civil Code (1910), § 696. Thé plaintiff in the above exception evidently relies upon § 507 of the Civil Code of 1910, which provides: “When debts have accumulated against the countjq so that one hundred per cent, on the State tax, or the amount specially allowed by local law, cannot pay the current expenses of the county and the debt in one year, they shall be paid off as rapidly as possible, at least twenty-five per cent, every year.” But from what has been said above it is manifest that that section does not apply to the facts of the *487present case. That being so, it would seem that where any county in this State is not working its convicts under the alternative road law, but has made requisition upon the proper State authorities for its pro rata share of the convicts to be used in working the public roads of the county, and is so using them, the proper county authorities having charge of the roads and revenues of the county may levy a tax sufficient to defray the expense incurred in maintaining, keeping, and equipping such convicts so obtained from the State, in addition to other tax levies which the' counties are authorized to levy, and which are set out in another part of this opinion. See Garrison v. Perkins, supra; Acts 1908, p. 1119; Commissioners of Habersham Co. v. Porter Mfg. Co., 103 Ga. 613, 616 (30 S. E. 547).

¶83. Error is assigned because the original tax levy was neither published in any public gazette nor published at the court-house door; nor entered upon the minutes of the commissioner of roads and revenues of the County of Warren. We are of the opinion that this assignment of error is without merit. While the provisions of §§ 514, 515 of the Civil Code of 1910, with reference to advertising a copy of the order assessing taxes, etc., should be complied with, such provision is directory and not mandatory. Dunn v. Harris, 144 Ga. 164, 385, 389 (86 S. E. 556, 87 S. E. 299); and see Garrison v. Perkins, supra. Besides, the court ordered, under the amendment to the tax levy, that it should be published and entered on the minutes as provided by §§ 514, 515 of the Civil Code, and this order is not specifically excepted to.

¶9Judgment affirmed.