Opinion
20255.
ARGUED OCTOBER 15, 1958.
DECIDED DECEMBER 5, 1958.
Mandamus. Chatham Superior Court. Before Judge Harrison. April 21, 1958.
Lawton, O'Donnell, Sipple Findley, for plaintiff in error.
George W. Williams, John J. Bouhan, contra.
Mandamus will not be granted when the performance which was sought as an official duty can not be compelled under applicable statutory law. Mandamus is not an appropriate remedy to compel a general course of official conduct to be performed under varying conditions over a long period of time.
ARGUED OCTOBER 15, 1958 — DECIDED DECEMBER 5, 1958.
The State of Georgia, on the relation of the Board of Public Education for the City of Savannah and the County of Chatham, filed a petition for mandamus against J. Archie Johnson, as Chatham County Tax Commissioner, on February 7, 1958, and on the same date the judge of the superior court "ordered that an alternative writ of mandamus issue," and that the respondent show cause on a date set for hearing why he has not complied with the alternative writ. On March 3, 1958, the respondent filed general and special demurrers to the petition, and an answer. On April 21, 1958, the relator (the plaintiff in error) filed a motion to make the mandamus absolute. On the same date the trial judge sustained the special demurrers of the respondent and allowed ten days for the relator to amend, and on the same date denied the motion to make the mandamus absolute.
On April 30, 1958, the relator's amendment was allowed and ordered filed, subject to demurrer. On May 14, 1958, the respondent filed a renewal of his general demurrer, and additional special demurrers, to the amendment. On August 21, 1958, the relator filed an additional amendment striking certain exhibits to its petition as amended. On August 25, 1958, the judge passed an order reciting that the renewed and additional demurrers of the respondent to the relator's petition had been considered, and that the petition as finally amended failed to set forth a cause of action upon which rule absolute should issue.
The bill of exceptions assigns as error the judgment entered on April 21, 1958, denying the motion to make the mandamus absolute, and the order dated August 25, 1958, sustaining the renewed and additional demurrers of the respondent and dismissing the relator's petition.
In so far as germane to the relief sought, the relator's petition alleged: It is a body politic and corporate, created and existing under the laws of Georgia, it exercises control and management of the public schools of the City of Savannah and the County of Chatham, and is entitled to demand and receive taxes levied and collected for educational purposes. The Constitution (Code, Ann., § 2-7501) requires the levy of a tax of not less than five nor more than fifteen mills for educational purposes. This tax in Chatham County and the City of Savannah shall be levied as recommended by the relator. The office of the Tax Receiver in Chatham County has been abolished and the duties formerly belonging to that office were imposed upon the respondent, who is the Tax Commissioner of Chatham County. The law requires that the person making a return shall state the true value of all property reported by him. In Chatham County the person making a return does so in accordance with a "system" wherein he neither reads, nor hears read, and does not consider, any list of questions. The law requires that the respondent submit a list of questions, which if answered, would reflect the kind, character, and fair market value of all taxable property owned by the taxpayer. The list of questions contemplated by law appears on the form of the tax return, but the respondent fails to present this list as required by law. (A copy of the return in use is attached as an exhibit.) The laws of the State not only require that the person making the return shall consider all questions applicable to him, but the tax receiver is required to administer an oath under the provisions of Code § 92-6216. Code § 92-6217 requires that the tax receivers of the several counties shall actually administer the oath required by § 92-6216. The respondent does not administer the oath required by law. It is neither read to the property owner in the presence of and in the hearing of the respondent, nor by him in the hearing and presence of the property owner. The taxpayer is presented with a return previously prepared. In response to the instruction to "sign here," the person making the return does nothing more than sign his name. The failure of the respondent to execute the duties imposed upon him results in a systematic exclusion from the returns of taxpayers in Chatham County of a part of the value of property returned. The respondent fails to perform the duties imposed upon him by the homestead exemption laws, in that he systematically applies the $2,000 exemption to the reduced value, rather than applying it to the true value, as required by law. In so far as the relator has been able to determine, residential property in Chatham County is supposedly assessed at 25% of its market value, and under such circumstances a homestead exemption of $8,000 is thereby granted. The relator has a clear legal right to have the property subject to taxation in Chatham County returned in the manner provided by law, and the respondent is under a clear legal duty to perform the necessary acts. The relator is without an adequate remedy at law, unless it be by action of the court granting its writ of mandamus.
It is prayed that mandamus issue requiring the respondent to: (a) present a list to each person making a tax return for himself, or as agent, as required by law; (b) actually administer to each person making a return of taxable property the oath required by law; (c) have all property returned upon the basis of what the person making the return determines is the fair market value thereof; and (d) apply the homestead exemption, where applicable, to the true value of the property.
In his answer the respondent admits that he is required to perform certain ministerial duties, but denies that the principal purpose is to elicit from the taxpayer a declaration by him of the true market value of the property returned. He asserts: The duty rests upon the taxpayer to estimate the value of the property listed on his return. Every taxpayer making the return is presented with a list of questions as set forth on the form of the return, and in the manner required by the statutes. The law does not require the respondent to personally present the list, and personally administer the oath to each taxpayer, these being ministerial acts which may be properly delegated to constituted deputies and assistants. The law requires no more than a substantial compliance by his duly constituted deputies and assistants with the provisions of the Code. Each person is presented with a list of questions, and the oath contained upon the form, and the respondent, or his deputies as the case may be, propounds to the person making the return the question as to whether or not the return contains all of the property he owns, and all returns are required to be signed in the presence of the respondent or his deputies. To apply the law and the strained construction insisted upon by the relator would be to require the respondent to perform an impossibility, as shown by certain allegations and calculations as to the number of returns received, and the time that would be required to receive them in the manner insisted upon by the relator.
All duties formerly discharged by the Tax Receiver and Tax Collector of Chatham County were consolidated under the act creating the office of Chatham County Tax Commissioner, approved February 8, 1955 (Ga. L. 1955, pp. 2210-2216). Code § 92-6902, as amended by an act approved March 9, 1945 (Ga. L. 1945, pp. 423-424), provides that, within ten days after the first day of April of each year, the tax receiver of each county shall present the tax returns of the county for the current year to the county board of tax assessors for examination and revision. Code § 92-6917, as amended by an act approved March 8, 1945 (Ga. L. 1945, pp. 251-252), provides that the county board of tax assessors shall complete its revision and assessment of the returns of the taxpayers by June 1 of each year, and that the tax receiver shall then immediately forward one copy of the completed digest to the State Revenue Commissioner for examination and approval.
It thus appears that the duties imposed by law upon the respondent pertaining to receiving tax returns and the duties imposed upon the Board of Tax Assessors of Chatham County should have been completed prior to the order of the court on April 21, 1958. On August 25, 1958, the date of the final judgment of dismissal, the judge of the superior court was without authority to enter any order directing the respondent to receive returns in any manner, or revise or change returns received by him from taxpayers in Chatham County, for the year 1958.
It has long been the rule in this State that, when the time has passed for the discharge of the official duty sought to be compelled, mandamus will be denied. "Mandamus will not be granted when it is manifest that the writ would, for any cause, be nugatory or fruitless; . . ." Code § 64-106. "Where at the time an application for mandamus was heard by the judge of the superior court the time had passed within which the official duty, the performance of which was sought to be compelled, could be performed, the court properly denied a mandamus absolute. Mandamus will not be granted when it is manifest that the writ would, for any cause, be nugatory or fruitless." Stacy v. Hammond, 96 Ga. 125 ( 23 S.E. 77). See also Commissioners of McIntosh County v. Aiken Canning Co., 123 Ga. 647, 653 ( 51 S.E. 585); Smith v. Hodgson, 129 Ga. 494, 497 ( 59 S.E. 272); Kirkland v. Lowry, 175 Ga. 240, 242 ( 165 S.E. 111); Harmon v. James, 200 Ga. 742, 743 ( 38 S.E.2d 401).
The Judge of the Superior Court of Chatham County, being without authority on August 25, 1958, to compel other and different acts by the respondent with reference to the tax returns of the county for the year 1958, properly dismissed the petition. Whether the order of dismissal was based upon the renewed general demurrer to the petition as amended, or whether the judge dismissed it on his own motion for want of authority to grant the relief sought, is not material to the judgment rendered. A correct judgment is not erroneous because the judge may have entered it for reasons other than those which required the judgment.
This ruling might properly be said to dispose of the present case. It may be insisted, however, that, even though the time had passed for the relief sought in 1958, the judge should have retained jurisdiction so as to grant relief to the relator in 1959, or in some subsequent year. The acts sought by the relator to be required of the respondent must of necessity be performed under varying conditions as to the number of taxpayers seeking to make returns, and other conditions not readily anticipated. "While mandamus will lie to compel performance of specific acts, where the duty to discharge them is clear, it is not an appropriate remedy to compel a general course of official conduct for a long series of continuous acts to be performed under varying conditions." Jackson v. Cochran, 134 Ga. 396 ( 67 S.E. 825, 20 Ann. Cas. 219). See also Bahnsen v. Young, 159 Ga. 256 ( 125 S.E. 459); Atlanta Title Trust Co. v. Tidwell, 173 Ga. 499 ( 160 S.E. 620, 80 A.L.R. 735); Richter v. Jordan, 185 Ga. 39 ( 193 S.E. 871); Murphy v. Brock, 206 Ga. 9 ( 55 S.E.2d 564).
The complaint that the respondent (whether on his own motion, or in conjunction with the tax assessors) entered certain property on the returns to be made by the taxpayers, would not of itself invalidate the returns. This procedure may well have been used to expedite a return of the taxpayer's property, but in any event, under Code § 92-5703, property subject to taxation is to "be returned by the taxpayers," and the taxpayer would not be relieved of his responsibility to return his property because it might appear that certain items of his property had previously been entered on his return.
The relator apparently concludes that, if no entries were previously made upon the taxpayer's return, and if the questions on the return were propounded by the respondent to the taxpayer, there might be a substantial increase in valuations. It does not necessarily follow that this would be the final result. Regardless of the valuations placed on the return by the taxpayer, it is the duty of the tax assessors of the county, in the first instance, to equalize returns of all taxpayers, and this might be done in some instances by increased assessments, and in other instances by lowered assessments. Finally, when the tax digest reaches the State Revenue Commissioner, he has a discretion in the acceptance of the digest of any county, and may require that valuations be increased or decreased upon the digest. Code § 92-7002; Ga. L. 1937-38, Ex. Sess., pp. 77, 86 (Code, Ann., § 92-8415). Certainly the trial judge in a mandamus proceeding against the respondent would not be vested with any authority to control the discretion vested in the tax assessors of the county, and the State Revenue Commissioner of Georgia.
Judgment affirmed. All the Justices concur.