Summary
In Barrett v. Slagle, 214 Ga. 650 (106 S.E.2d 908), the petition was filed on August 1, 1958. It was alleged that the board of tax assessors had completed their work, and that unless enjoined, the county commissioner would make a tax levy upon the property of the petitioners in the amount fixed by the tax assessors (the levy referred to being the fixing of a rate of taxation for county purposes for the year 1958).
Summary of this case from Derrick v. CampbellOpinion
20261.
ARGUED NOVEMBER 10, 1958.
DECIDED JANUARY 12, 1959. REHEARING DENIED FEBRUARY 6, 1959.
Equitable petition. Gordon Superior Court. Before Judge Foster from Tallapoosa Circuit. September 12, 1958.
John D. Edge, Maddox Maddox, for plaintiffs in error.
Harry T. Lawrence, contra.
The judgment of the court below, sustaining a general demurrer to the petition in this case, was not error for any reason assigned.
ARGUED NOVEMBER 10, 1958 — DECIDED JANUARY 12, 1959 — REHEARING DENIED FEBRUARY 6, 1959.
Certain named citizens and taxpayers of Gordon County, Georgia, brought their suit in equity against John Slagle, County Commissioner of said county; W. G. Robertson, Tax Commissioner; G. M. Hatchett, J. O. Davis, and Luke Spink, who it is alleged purport to act as the Board of Tax Assessors of Gordon County; seeking to have all the acts of the said board in raising petitioners' returns declared null and void, and seeking to enjoin the County Tax Commissioner and the County Commissioner from levying and collecting the taxes based upon the assessments made by defendants Hatchett, Davis, and Spink. It was alleged that the said G. M. Hatchett, one of the assessors, had, on or about January 1, 1957, been employed by the tax assessors on a full-time basis to assist the board in properly determining the fair and proper tax assessments for Gordon County, at a salary of $300 per month, together with an expense account of $100 per month; that Hatchett, in accordance with the terms of his employment, did go into certain communities in Gordon County purporting to inspect property therein, but has not gone into all of the communities in Gordon County. It is further alleged that Hatchett, purporting to act as a tax assessor, continued to receive the salary and expense account during the time he was acting as tax assessor; that the other assessors did not receive the same compensation, and that Hatchett could not faithfully and impartially perform his duties as tax assessor when he at the same time was employed to seek out and make known to the tax assessors property which in his opinion was not properly returned for taxes.
It was alleged in the petition that defendants Davis and Spink, who it is alleged purport to act as members of the Board of Tax Assessors of Gordon County, are acting illegally because no order making their appointment to such office has been entered on the minutes of the Clerk of the Superior Court of Gordon County, and because it does not appear that they have ever taken the oath of office. It was further alleged that defendants Hatchett, Davis, and Spink did meet in May to perform the duties of the Board of Tax Assessors, and did raise the returns of approximately 2,400 taxpayers; that there are approximately 5,7000 taxpayers in Gordon County; that said increases were made arbitrarily, illegally, and by a purported Board of Assessors who were not qualified to act, and were done without making any inquiries or investigation as to the present values of the property, except by the defendant Hatchett; that the Board of Tax Assessors did not seek to equalize tax values among taxpayers, but only to increase the tax of certain persons living in certain communities; that, by raising the taxes of certain persons living in certain communities and not raising those in other communities, the board violated certain stated provisions of the Constitution of the State of Georgia and of the United States.
It was further alleged that the purported Board of Tax Assessors had completed their work and that, unless enjoined, the defendants Slagle and Robertson will proceed to levy and collect the taxes in the amounts fixed by the tax assessors.
General and special demurrers to the petition were filed. The general demurrers were sustained and the petition was dismissed. The exception here is to that judgment.
1. It is contended that the arrangement whereby the defendant Hatchett was paid a salary of $300 per month plus an expense account of $100 per month to seek out property which is not returned for taxes or which is returned for less than its fair value is illegal and void as against public policy, and that the assessments made as a result of the information gathered by defendant Hatchett are likewise illegal and void. There is no merit in this contention. In so far as the allegations of the petition are concerned, it appears only that the defendant Hatchett is a member of the Board of Tax Assessors, and that he is devoting his full time to the job for which he is being paid a salary and given an expense allowance which is greater than that being paid and allowed to the other members of the board who are devoting only part time to the job. There is no rule of public policy which has been called to our attention, and we have discovered none, which requires all members of a Board of Tax Assessors to receive the same compensation regardless of the amount of time and work they devote to the job. In the instant case, Hatchett is not an employee of the board whose work it is the duty of the board to supervise. He is simply a member of the Board of Tax Assessors and is doing what a member of the board is required by law to do; that is, to seek out property which is not properly returned for taxes. Since he does devote more time to the job than the other members of the board do, it is only fair and just that he receive more compensation.
The cases cited and relied upon by the plaintiffs in error with reference to self-dealing on the part of a public official, and with the duty of an officer whose duty it is to supervise the work of others, are not applicable to the facts in the instant case because these circumstances do not appear in the allegations of the petition.
2. It is next contended that the defendants Davis and Spink are acting illegally as purported tax assessors, because no order appointing them to such office has been entered on the minutes of the Clerk of the Superior Court of Gordon County, and because cause it does not appear on the record that they have ever taken the oath of office. There is no merit in this contention. The petition in the instant case does not allege that the defendants were not appointed by the authority having power to appoint members of the Board of Tax Assessors of Gordon County. It simply alleges that the appointment was not entered on the minutes of the Clerk of the Superior Court of Gordon County, and that it does not appear on the record that they had taken the oath of office in accordance with Code (Ann.) § 92-6903. These deficiencies in the qualifying of these defendants for the office to which they were appointed, even if they result in their being legally not qualified to hold the offices, are not such as to make their actions illegal and void, since they are at least de facto officers in the positions they occupy. "County officers performing the duty of their offices are at least de facto officers, and their official actions are prima facie valid and can not be attacked collaterally." Clements v. Powell, 155 Ga. 278 (6) ( 116 S.E. 624). See also Code § 89-310.
Code § 89-101, which designates persons deemed to be ineligible to hold any public office, cited and relied upon by the plaintiff in error, is not applicable to the facts in the instant case because it does not appear that the defendants are members of any class of persons therein listed as ineligible to hold public office.
3. In so far as the contention that the assessments complained of were made without any investigation or inquiry, except by defendant Hatchett, and for this reason were arbitrarily made, it is sufficient to say again what was said in Hutchins v. Williams, 212 Ga. 754 (4) ( 95 S.E.2d 674), as follows: "The duties placed on the Board of Tax Assessors to require all property in a county to be returned for taxes at a just and fair valuation, and that the valuation as between individual taxpayers be justly and fairly equalized, does not require the members thereof to use any definite system or method, but demands only that the valuations be just and fair, and the failure to use any particular system, method, cadastral survey, book, or other instruments to derive values used in the past would not in any way render void the valuations placed on said property by the assessors."
4. Since, as has been held above, the assessments complained of were not illegal and void, the petition, of course, sets out no cause of action against defendants Slagle and Robertson to enjoin the levy and collection of the taxes based upon the assessments.
5. For reasons stated in the preceding opinion, the judgment of the court below sustaining the general demurrer to the petition was not error.
Judgment affirmed. All the Justices concur.