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LANIER et al. v. SUTTLES, Tax Collector, et al.
19151.
Injunction. Before Judge Hicks, presiding. Fulton Superior Court. September 9, 1955.
MOBLEY, Justice.
1. In order to raise a question as to the constitutionality of a "law" (Code, Ann., 2-3704), the statute which the party challenges, and the provision of the Constitution alleged to have been violated, must both be clearly specified, and it must also be shown wherein the statute violates such constitutional provision.
2. Where, as here, it appears from a petition that the plaintiffs have not exhausted their statutory remedies with reference to the subject matter of their complaint, the allegations of the petition fail to state a cause of action for the injunctive relief sought; and the trial court here did not err in sustaining the defendants' general demurrer and in dismissing the action.
J. Sidney Lanier and E. B. Lanier filed in Fulton Superior Court, against T. E. Suttles, Tax Collector, and the Joint Board of City and County Tax Assessors, a petition, which as amended alleged substantially the following: The petitioners are the owners of designated lots in the cities of East Point, Hapeville, and Atlanta. The over-all increase in assessments made by the Joint Board of City and County Tax Assessors over the amounts assessed by the Tax Assessors of the City of East Point, is $2,720. Neither the Joint Board of City and County Tax Assessors, nor any member thereof, has been by, on, through, in, or near any of the properties herein named for appraisal for tax purposes, nor was any notice of change in tax assessments for said properties given petitioners, as required by law. Since no incorporated city in Fulton County is represented on the Joint Board of City and County Tax Assessors, with the exception of the City of Atlanta, said board is unconstitutional, and tax assessments by said board are inequitable, unfair, and unjust; the cities have duly appointed or legally elected tax assessors of their own, and assessments made by such assessors are binding on all parties, including Fulton County; the assessments of taxes by two different agencies on the same realty in different amounts, without representation, is illegal, unconstitutional, unfair, and unjust to the property owner, and amounts to taxation without representation. Petitioners have no adequate remedy at law, for the reason that the Fulton County Board of Appeals is unconstitutional for the same reason that the Joint Board of City and County Tax Assessors is unconstitutional, having been created by the same act of the legislature. The petitioners prayed: that process and a rule nisi issue; that the tax collector be enjoined from collecting taxes from the petitioners, on any assessments made by the Joint Board of City and County Tax Assessors, in excess of the taxes on assessments made by the Tax Assessors of the City of East Point; that the Joint Board of City and County Tax Assessors be enjoined from making any tax assessments on the petitioners' property without representation on said board from the incorporated cities in which the petitioners' properties are located.
General and special grounds of demurrer were interposed by the defendants to the petition as amended. The trial court sustained the defendants' general demurrer and dismissed the action, to which ruling the petitioners excepted.
1. A statute is presumed to be valid and constitutional until the contrary appears. Mayes v. Daniel, 186 Ga. 345 (1) (198 S. E. 535). In order to raise a question as to the constitutionality of a "law" (Code, Ann., 2-3704), the statute which the party challenges, and the provision of the Constitution alleged to have been violated, must both be clearly specified, and it must also be shown wherein the statute violates such constitutional provision. Krasner v. Rutledge, 204 Ga. 380, 382 (49 S. E. 2d 864), and cases cited; Flynn v. State, 209 Ga. 519, 521 (74 S. E. 2d 461).
The allegations in the present petition do not state what provisions of the State or Federal Constitution are alleged to be violated, or wherein or in what respect the act creating the Joint Board of City and County Tax Assessors, and the Fulton County Board of Appeals, is unconstitutional.
2. Section 16 of the act of 1952 (Ga. L. 1952, pp. 2825, 2829) provides for a hearing upon the petition of any taxpayer aggrieved by acts of the Joint Board of City and County Tax Assessors, and that the value fixed by the Appeal Board shall be final unless the taxpayer shall, within 20 days, institute appropriate proceedings in equity in the superior court of the county on the claim that the assessment is excessive or that the property is exempt from taxation under the laws of the State of Georgia.
"Equity by writ of injunction will restrain any act which is illegal or contrary to equity and good conscience and for which no adequate remedy at law is provided. Code 37-102; Chadwick v. Dolinoff, 207 Ga. 702 (2) (64 S. E. 2d 76); Waycross Military Assn. v. Hiers, 209 Ga. 812 (5) (76 S. E. 2d 486). But where all the relief sought can be obtained in the manner provided by law, a suit in equity for injunction will not lie. Scarbrough v. Cook, 208 Ga. 697 (1) (69 S. E. 2d 201)." Lively v. Grinstead, 210 Ga. 361, 364 (80 S. E. 2d 316).
The only reason given by the petitioners for their not having an adequate remedy at law is that the Fulton County Board of Appeals is unconstitutional. Since no constitutional question was properly raised, the allegation as to no adequate remedy at law fails.
The allegation of the present petition that the Joint Board of City and County Tax Assessors raised the assessments made by the Tax Assessors of the City of East Point, without giving petitioners the notice of change in tax assessments as required by law, was not, as against demurrer, an averment that the petitioners were not given the five-day notice required under Code (Ann.) 92-6911, with reference to changes made in returns filed by taxpayers.
The allegations of the petition as amended are insufficient to set forth a cause of action for the injunctive relief sought, and the trial court did not err in sustaining the defendants' general demurrer and in dismissing the action.
Judgment affirmed. All the Justices concur.
Harold Sheats, Durwood T. Pye, E. A. Wright, contra.
J. Sidney Lanier, Frank Grizzard, Frank A. Bowers, for plaintiffs in error.
ARGUED NOVEMBER 15, 1955 -- DECIDED JANUARY 10, 1956.
Saturday May 23 02:29 EDT


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