Harding v. City of Decatur

175 S.E.2d 507, 226 Ga. 474, 1970 Ga. LEXIS 568

• Court: Supreme Court of Georgia
• Decided: May 14, 1970
• Docket: 25737
• Status: Published

Opinions

Grice, Justice.

Richard B. Harding and others filed a complaint in the Superior Court of DeKalb County against the City of Decatur, the DeKalb County Board of Tax Assessors, the Tax Commissioner of DeKalb County, and certain insurance companies. The plaintiffs alleged that they owned property in the City of Decatur and in DeKalb County and that the governmental defendants had assessed their property in an unconstitutional manner in stated particulars. They prayed that the governmental defendants be enjoined from seeking to collect ad valorem taxes on their property until a proper tax digest and assessment as contemplated by the State Constitution has been made and certified by the State Commissioner of Revenue; that the defendant insurance companies be enjoined and restrained from disbursing any funds for the payment of 1969 taxes on the plaintiffs’ properties; that a temporary restraining order pending a hearing be granted so as to protect plaintiffs’ rights; and that they have general relief.

The governmental defendants filed their defensive pleadings denying the material allegations of the complaint, and the defendant insurance companies in their pleadings' sought protection of their secured interests.

Upon a hearing the trial court sustained the defendants’ motion to dismiss the complaint, and the appeal is from that judgment.

It is well settled in this State that “He who would have equity must do equity . . ' . ” (Code § 37-104), and that “One seeking relief from excessive tax levies, but admitting, either expressly or by necessary implication, that he owes part of the tax covered by such executions, must pay or offer to pay the amount of the taxes admitted to be due, in order to obtain the relief sought.” Peoples Credit Clothing Co. v. City of Atlanta, 173 Ga. 653 (1) (160 SE 873); Pierce Trading Co. v. City of Blackshear, 182 Ga. 649 (186 SE 721); Mayor &c. of Savannah v. Fawcett, 186 Ga. 132 (197 SE 253); Clisby v. City of Macon, 191 Ga. 749 (13 SE2d 772) (one Justice disqualified); Derrick v. Campbell, 219 Ga. 795 (136 SE2d 381); Allen v. Thomas, 225 Ga. 650 (171 SE2d 132).

The plaintiffs contend that no tender of taxes by them was necessary under the recent case of Register v. Langdale, 226 Ga. 82 (172 SE2d 620). However, in that case taxes were not yet due and the tax collector could not have accepted them had they been tendered. This is not true in the instant situation. The complaint, filed August 15, 1969, alleges that the plaintiffs have received tax bills and that the law requires payment to be made commencing August 15, 1969.

However, as to the DeKalb County property, one-half of the taxes became due on July 1, 1969. Code § 92-6402, as amended by two statutes with local application by population brackets to DeKalb County (Ga. L. 1964, p. 328; Ga. L. 1966, p. 105), provides that the first one-half of the taxes on property is due and payable July 1st of each year and becomes delinquent if not paid by August 15 and the other one-half is due October 1 and delinquent if not paid by November 15, and that executions shall issue after December 20.

As to the City of Decatur property, no owner of such property was even made a party plaintiff until an amendment of January 6, 1970, which was after 1969 City of Decatur taxes were delinquent as of December 20, 1969.

From an examination of the facts of the complaint and its prayers, it is apparent that the plaintiffs do not claim that they do not owe any taxes. See Hardwick v. City of Dalton, 140 Ga. 633, 635 (79 SE 553); Elder v. Home Building &c. Assn., 185 Ga. 258 (2) (194 SE 745) (one Justice dissenting); Smith v. City of East Ellijay, 217 Ga. 364 (122 SE2d 112). Therefore, in order to do equity, such taxes as were acknowledged to be owed must have been paid or tendered in order to afford the plaintiffs an opportunity to have their case considered as to the unconstitutional tax attack sought to be made.

Thus, the trial court properly dismissed the complaint.

Judgment affirmed.

All the Justices concur, except Felton, J., who dissents.