Eberhardt, Judge.
In Seagraves v. Seagraves, 193 Ga. 280 (1) (18 SE2d 460) it was held: “A tax return is admissible in evidence to show the amount and value of the property admitted by the taxpayer to be his; but where such a return contains assessments made by some one other than the taxpayer, the assessments are not admissible.” The returns in that case were on the forms used in Fulton County, apparently identical in all respects with the forms used for the taxpayer’s return here, and, as here, the values of the land were typed in under the columns headed “City Assess.” and “County Assess.” though signed by the taxpayer or his agent.
It is contended by the condemnor that this situation is distinguishable from that in Seagraves in that the tax return introduced in evidence in this case was sworn to or verified by the condemnee’s husband, who made the return as her agent, while it does not appear from the opinion in Seagraves whether the return in that case was verified or not.
It is true that tax returns are required by law to be verified by the person making the return. Code Ann. § 92-6216. The oath is required to be “subscribed by the person making the return, and the administering and taking of the oath shall be attested by the receiver of tax returns. . ,”1 (Emphasis supplied.)
We have examined the record in the Seagraves case and find [74]*74that no copy of the return was sent up from the trial court. As is authorized to be done by Code Ann. § 6-801, it was abstracted in the briefing of the evidence to show the items of property listed and the values placed thereon under the headings “City Assessment” and “County Assessment.” When the return was exhibited to Mr. Seagraves for identification he testified: “That is my signature, it looks like it. . . This is the return that I made to the tax assessors.” At the conclusion of the brief of the evidence it was recited: “Thereupon the plaintiff tendered in evidence the tax records for 1940 showing a return made by L. J. Seagraves, being a record of his return of Fulton County taxes . . . signed by L. J. Seagraves, dated March 6, 1940. The property listed on said return was as follows: (then appears a list of the items, together with the values in the columns, as stated above.) ”
Since the taxpayer was required to make oath to the return (Code Ann. § 92-6216), in the absence of any showing to the contrary—and there was no such showing in that record—it must be presumed that he did so. Clements v. Hollingsworth, 205 Ga. 153 (5) (52 SE2d 465). Since the statute requires that the receiver of the return administer the oath to the taxpayer, for the same reason it must be presumed that he did so, Todd v. State, 205 Ga. 363 (53 SE2d 906), and especially so since it appears that the tax return was made in 1940. Code § 38-114. We must assume that the ruling in Seagraves was made in the light of those presumptions.
Turning now to the record in this case, we find the three lots, though lying adjacent and in what might otherwise be considered as one tract, were listed on two separate returns. Certified photostatic copies of the two returns are in the record. Each of them appears to have been prepared on a typewriter or machine of some kind so that the name of the taxpayer is listed at the upper left and the items of real estate are listed below with the values of each item set opposite them under columns headed “City Assessment” and “County Assessment”—just as was the case in Seagraves. The listings of each item of property and of the values in these columns was done with a typewriter or ma[75]*75chine. Each carries on its face the legend “data processing (ver) #3.” When they were exhibited to Mr. Gruber he testified that he signed the returns but that he did not place any values on any of the items of property shown or listed—that this was done in advance by the people in the tax office, and that in making the returns each year for his wife he had never at any time since the purchase of these items placed any values on them.
Printed at the bottom of each- of the returns is the form of oath prescribed by Code Ann. § 92-6216, and at the end of it is further printed “sworn to and subscribed before me, Jack L. Camp, Tax Comm.” Following the affidavit form appears the signature of Mr. Gruber, but there is no attestation on either of the returns by Jack L. Camp. In the place for attestation on one of them is the notation “Bb,” while the other is entirely blank.
If there were evidence in the record that the oath was in fact administered to Mr. Gruber by Jack L. Camp, the tax commissioner, the attestation might have been affixed nunc pro tunc. Veal v. Perkerson, 47 Ga. 92. But there is no evidence in this record that Mr. Camp, or any person authorized by law, administered any oath or that Mr. Gruber did more than sign the returns, and the returns themselves show a lack of any attestation, a lack of any certificate of the officer before whom the writing was sworn to—which is the jurat—and thus the lack of any valid jurat.
If it be said that the entry or notation on one of the returns “Bb” indicates that the oath may have been administered by somebody, it must be observed that the statute requires that it be done before the tax commissioner, since Mr. Gruber was a male resident of Fulton County. Moreover, nothing appears to indicate that “Bb” attested the return in any official capacity, or whether he was a deputy commissioner, an assistant, a mere employee, or a wayfaring stranger. The photostatic copies of the returns are certified to be true and correct by the tax commissioner, Jack L. Camp. He is not “Bb,” and the handwriting of the entry or notation, if it has any significance:—which we do not think it does—is obviously not that of Jack L. Camp.
[76]*76“Powers of all public officers are defined by law, and all persons must take notice thereof.” Code § 89-903; Morris Plan Bank v. Simmons, 201 Ga. 157, 171 (39 SE2d 166). Since it is required by Code Ann. § 92-6216 that the oath be administered by and the affidavit subscribed before the tax commissioner nobody else had authority to perform that function, and the attempted performance by anybody else would be without force or validity unless that person were authorized by law to do it.2 See Wilkowski v. Halle, 37 Ga. 678 (95 AD 374); Heard v. National Bank of Ill., 114 Ga. 291 (40 SE 266); Falligant v. Blitch, 19 Ga. App. 675 (91 SE 1057); Brach & Sons v. Oglesby Grocery Co., 33 Ga. App. 481 (127 SE 157). “An attempted oath administered by one who is himself not qualified to administer it is abortive and in effect no oath.” Crockett v. Cassels, 95 Fla. 851 (116 S 865). It has been held that a solicitor of a court, unless authorized by statute, has no authority to administer an oath. State v. Furmage, 250 N.C. 616 (109 SE2d 563). And the same is true of a postmaster. Dawson v. Meier, (N.D.) 78 NW2d 420. Where the statute authorized the foreman of a grand jury to administer the oath to witnesses appearing before that body, his authority could not extend to any others; he could not swear the grand jurors. Hammers v. State, (Okla.) 337 [77]*77P2d 1097. “It is well settled that no consideration of public policy can properly induce a court to reject the statutory definition of the powers of an officer.” Govt. of Virgin Islands v.
Free access — add to your briefcase to read the full text and ask questions with AI
Eberhardt, Judge.
In Seagraves v. Seagraves, 193 Ga. 280 (1) (18 SE2d 460) it was held: “A tax return is admissible in evidence to show the amount and value of the property admitted by the taxpayer to be his; but where such a return contains assessments made by some one other than the taxpayer, the assessments are not admissible.” The returns in that case were on the forms used in Fulton County, apparently identical in all respects with the forms used for the taxpayer’s return here, and, as here, the values of the land were typed in under the columns headed “City Assess.” and “County Assess.” though signed by the taxpayer or his agent.
It is contended by the condemnor that this situation is distinguishable from that in Seagraves in that the tax return introduced in evidence in this case was sworn to or verified by the condemnee’s husband, who made the return as her agent, while it does not appear from the opinion in Seagraves whether the return in that case was verified or not.
It is true that tax returns are required by law to be verified by the person making the return. Code Ann. § 92-6216. The oath is required to be “subscribed by the person making the return, and the administering and taking of the oath shall be attested by the receiver of tax returns. . ,”1 (Emphasis supplied.)
We have examined the record in the Seagraves case and find [74]*74that no copy of the return was sent up from the trial court. As is authorized to be done by Code Ann. § 6-801, it was abstracted in the briefing of the evidence to show the items of property listed and the values placed thereon under the headings “City Assessment” and “County Assessment.” When the return was exhibited to Mr. Seagraves for identification he testified: “That is my signature, it looks like it. . . This is the return that I made to the tax assessors.” At the conclusion of the brief of the evidence it was recited: “Thereupon the plaintiff tendered in evidence the tax records for 1940 showing a return made by L. J. Seagraves, being a record of his return of Fulton County taxes . . . signed by L. J. Seagraves, dated March 6, 1940. The property listed on said return was as follows: (then appears a list of the items, together with the values in the columns, as stated above.) ”
Since the taxpayer was required to make oath to the return (Code Ann. § 92-6216), in the absence of any showing to the contrary—and there was no such showing in that record—it must be presumed that he did so. Clements v. Hollingsworth, 205 Ga. 153 (5) (52 SE2d 465). Since the statute requires that the receiver of the return administer the oath to the taxpayer, for the same reason it must be presumed that he did so, Todd v. State, 205 Ga. 363 (53 SE2d 906), and especially so since it appears that the tax return was made in 1940. Code § 38-114. We must assume that the ruling in Seagraves was made in the light of those presumptions.
Turning now to the record in this case, we find the three lots, though lying adjacent and in what might otherwise be considered as one tract, were listed on two separate returns. Certified photostatic copies of the two returns are in the record. Each of them appears to have been prepared on a typewriter or machine of some kind so that the name of the taxpayer is listed at the upper left and the items of real estate are listed below with the values of each item set opposite them under columns headed “City Assessment” and “County Assessment”—just as was the case in Seagraves. The listings of each item of property and of the values in these columns was done with a typewriter or ma[75]*75chine. Each carries on its face the legend “data processing (ver) #3.” When they were exhibited to Mr. Gruber he testified that he signed the returns but that he did not place any values on any of the items of property shown or listed—that this was done in advance by the people in the tax office, and that in making the returns each year for his wife he had never at any time since the purchase of these items placed any values on them.
Printed at the bottom of each- of the returns is the form of oath prescribed by Code Ann. § 92-6216, and at the end of it is further printed “sworn to and subscribed before me, Jack L. Camp, Tax Comm.” Following the affidavit form appears the signature of Mr. Gruber, but there is no attestation on either of the returns by Jack L. Camp. In the place for attestation on one of them is the notation “Bb,” while the other is entirely blank.
If there were evidence in the record that the oath was in fact administered to Mr. Gruber by Jack L. Camp, the tax commissioner, the attestation might have been affixed nunc pro tunc. Veal v. Perkerson, 47 Ga. 92. But there is no evidence in this record that Mr. Camp, or any person authorized by law, administered any oath or that Mr. Gruber did more than sign the returns, and the returns themselves show a lack of any attestation, a lack of any certificate of the officer before whom the writing was sworn to—which is the jurat—and thus the lack of any valid jurat.
If it be said that the entry or notation on one of the returns “Bb” indicates that the oath may have been administered by somebody, it must be observed that the statute requires that it be done before the tax commissioner, since Mr. Gruber was a male resident of Fulton County. Moreover, nothing appears to indicate that “Bb” attested the return in any official capacity, or whether he was a deputy commissioner, an assistant, a mere employee, or a wayfaring stranger. The photostatic copies of the returns are certified to be true and correct by the tax commissioner, Jack L. Camp. He is not “Bb,” and the handwriting of the entry or notation, if it has any significance:—which we do not think it does—is obviously not that of Jack L. Camp.
[76]*76“Powers of all public officers are defined by law, and all persons must take notice thereof.” Code § 89-903; Morris Plan Bank v. Simmons, 201 Ga. 157, 171 (39 SE2d 166). Since it is required by Code Ann. § 92-6216 that the oath be administered by and the affidavit subscribed before the tax commissioner nobody else had authority to perform that function, and the attempted performance by anybody else would be without force or validity unless that person were authorized by law to do it.2 See Wilkowski v. Halle, 37 Ga. 678 (95 AD 374); Heard v. National Bank of Ill., 114 Ga. 291 (40 SE 266); Falligant v. Blitch, 19 Ga. App. 675 (91 SE 1057); Brach & Sons v. Oglesby Grocery Co., 33 Ga. App. 481 (127 SE 157). “An attempted oath administered by one who is himself not qualified to administer it is abortive and in effect no oath.” Crockett v. Cassels, 95 Fla. 851 (116 S 865). It has been held that a solicitor of a court, unless authorized by statute, has no authority to administer an oath. State v. Furmage, 250 N.C. 616 (109 SE2d 563). And the same is true of a postmaster. Dawson v. Meier, (N.D.) 78 NW2d 420. Where the statute authorized the foreman of a grand jury to administer the oath to witnesses appearing before that body, his authority could not extend to any others; he could not swear the grand jurors. Hammers v. State, (Okla.) 337 [77]*77P2d 1097. “It is well settled that no consideration of public policy can properly induce a court to reject the statutory definition of the powers of an officer.” Govt. of Virgin Islands v. Gordon, 244 F2d 818, 820 (3rd Cir.). Consequently, unless it appears that Mr. Gruber did, in fact, have the oath administered to him by Mr. Camp, the tax commissioner, in connection with the making of the returns, or somebody having lawful authority to do it, there is no valid oath or affidavit. That does not appear.
“In the absence of a valid jurat, a writing in the form of an affidavit has no force, no validity, amounts to nothing, when standing alone, or when construed in connection with” other evidence. Laurens County v. Keen, 214 Ga. 32, 35 (102 SE2d 697). To make a valid affidavit the affiant “must swear to it, and the fact of his swearing must be certified by a proper officer.” In Re Bennett, 223 FSupp. 423. “In order to make an affidavit there must be present the officer, the affiant, and the paper, and there must be something done which amounts to the administration of an oath.” Carnes v. Carnes, 138 Ga. 1, 6 (74 SE 785).3 In Matthews v. Reid, 94 Ga. 461 (19 SE 247), an attorney prepared an affidavit for the purpose of foreclosing a chattel mortgage, signed his name to it, and then laid it on the desk of the clerk of the superior court, at which the latter was sitting, at the same time remarking: “Here is an affidavit I want to swear to; I have already signed it; the facts stated in it are true.” It did not appear that the clerk heard what the attorney said, no oath was formally administered and the clerk did not for a long time afterward sign the jurat. It was held that the oath was not duly made, and that the clerk had no authority to issue an execution thereon. And in McCain v. Bonner, 122 Ga. 842, 846 (51 SE 36), it was held that: "The acts of the officer and of the affiant must be concurrent and must conclusively indicate that it was the purpose of the one to administer and the other to take the oath, in order to make a valid [78]*78affidavit.” The comment of the court in Britt v. Davis, 130 Ga. 74, 78 (60 SE 180) seems appropriate: “We can not but deprecate the tendency to treat the taking of an oath as a mere technical formality, worthy of little attention. In the strenuous age in which we live speed is deemed of prime importance. But one must still pause long enough to verify the statements contained in a paper prepared for use as an affidavit, by swearing to them, . . .” and further, “Whether the affiant testifies in view of his responsibility to God or only to the criminal law, in either event what he does is something more than merely to sign a paper.”
If, as was held in McLendon v. Dunlap Hdw. Co., 3 Ga. App. 206, 210 (59 SE 718), “this oath was a part of the returns, and was necessary to make the returns complete or of any probative value,” it must follow that these returns should have been excluded.
Moreover, it is to be observed that the form of the oath prescribed by the statute and used in the printed form on the returns requires that the person making the return swear that “the value placed by me”—not that placed by the tax officials— “is the true market value thereof.” Mr. Gruber testified that at no time did he place any value on any item of property returned. The returns were hearsay, without probative value and under the ruling in Seagraves v. Seagraves, 193 Ga. 280 (1), supra, should have been excluded.
If it had appeared that Mr. Gruber had placed his own valuations, or those of his wife, on the items returned and that he had sworn to them in the manner required by law before the tax commissioner, there would have been no question of their admissibility. Seagraves v. Seagraves, supra, and citations. But we do not have that situation here; rather we have what appears to us to be the identical situation dealt with in Sea-graves, with the added fact that the returns do not carry a valid jurat.
Since the returns were inadmissible, interrogation of witnesses as to their contents or as to what they might show was impermissible. Condemnor’s contention that the returns were [79]*79offered for the purpose of impeaching the condemnee’s testimony that she had planned since about 1958 to develop it as a motel site cannot avail. The fact that the returns showed the property as three residential lots while it continued to be zoned as residential was not inconsistent with her plan to obtain a rezoning and develop it as commercial. Further, the condemnor concedes that the returns were introduced for the further purpose of showing value.
In his argument to the jury counsel for the condemnor placed the figures obtained from the tax returns purporting to represent values of condemnee’s three lots on a blackboard, multiplying each by four and argued that from the sum of these the values placed on the whole property by the condemnee and her witnesses were absurd. Counsel for the condemnee objected to the use of the figures obtained from the tax return and their multiplication by the arbitrary figure of four in arriving at the value of the land and asked that the jury be instructed to disregard it. The objection was overruled.
While counsel should be required to confine his argument to the evidence properly in the case and reasonable deductions to be drawn therefrom, he does have a reasonable latitude which is largely to be controlled by the sound discretion of the judge. Adkins v. Flagg, 147 Ga. 136 (93 SE 92). The use of the arbitrary figure of four in multiplying the figures obtained from the tax returns purporting to represent value when there was no testimony of any return by the taxpayer on the basis of one-fourth of value or of any assessment by the taxing authorities on that basis would seem to be going rather far afield. If counsel wished to argue a comparison with the values given by the condemnee or his witnesses we hardly see how the multiplying could have any relevancy, the real comparison to be made being that between the figure on the return and that given by the witnesses.
However, since the returns themselves were inadmissible for the reason given above, the argument was improper for the added reason that there was no legal evidence to support it or from which it might be inferred.
[80]*80The request to charge that if the city had refused to rezone the property for the purpose of holding the value down in contemplation of future acquisition for highway use, was not adjusted to the evidence even if proper as an abstract principle of law. See generally, In Re Inwood Hill Park v. City of New York, 243 NYS 63; Board of Commissioners v. Tallahassee Bank &c. Co., (Fla.) 108 S2d 74; 4 Nichols, Eminent Domain, § 12.322 (3rd Ed.). Cf. Civils v. Fulton County, 108 Ga. App. 793 (134 SE2d 453). Mr. Gruber testified that he went to the Atlanta-Fulton Planning Board to discuss the matter of rezoning and was there given the information that the property was “frozen” because of the plans for highway use later on, while the only zoning authority for the property was the City of Atlanta to which he never made application for a change. Refusal of this request was proper.
The exclusion of two photographs of motels located on other properties nearby was not error, for whether they would fairly and accurately portray the motel that Mrs. Gruber had planned to build on the land being condemned did not appear from the other evidence, nor did it appear that there was such comparability between those properties and that being condemned as to render them admissible. These matters are largely left to the discretion of the trial judge, and we find no abuse. Rosenthal v. O’Neal, 108 Ga. App. 54 (2) (132 SE2d 150); Owensby v. Jones, 109 Ga. App. 398 (8) (136 SE2d 451); McKinney v. Pitts, 109 Ga. App. 866 (4) (137 SE2d 571).
Error is assigned upon the restriction of the motel plans that Mrs. Gruber’s son had prepared, when admitted in evidence, to the showing of value, if they did, of the lands taken, in the light of all the other evidence. Since these were plans only and no structure had been placed on the land pursuant to them, their value as evidence was to show the possibility of making the improvement as that might affect the land value. We find no error in this manner of admitting them.
The condemnee strongly urges that the amount of the verdict is so low until it carries inadequacy on its face. Since we are reversing on other grounds a consideration of this assignment is unnecessary.
[81]*81
Judgment reversed.
Nichols, P. J., Bell, P. J., Frankum and Hall, JJ., concur. Felton, C. J., Jordan, Bussell and Pannell, JJ., dissent in part.