Harper v. Davis , 197 Ga. 762 ( 1944 )

1. Art 7, sec. 2, par. 7 of the constitution of this State, as amended in 1937, declares: "Beginning January 1, 1938, there shall be exempted from all ad valorem taxation for State, county, and school purposes the homestead of each resident of this State actually occupied by the owner as a residence and homestead, to the value of $2,000, and only so long as actually occupied by the owner primarily as such, with the exception of taxation to pay interest on and retire bonded indebtedness. Such value to be determined in such manner and according to such rules and regulations as may be prescribed by law. The General Assembly may from time to time, as the condition of fiscal affairs of the State, counties, or schools may warrant, lower said exemption to not less than $1,250." Ga. L. 1937, p. 1122; Ga. Code Ann., § 2-5008.

(a) In the instant case, the appeal from the action of the board of tax assessors, disallowing a claim of homestead exemption, showed upon its face that the property claimed as exempt included at least one building which was not occupied by the applicant as a residence, and was therefore not exempt from taxation as a homestead or residence.

(b) The fact that the entire property claimed as exempt was assessed at only $1550, which is less than the maximum exemption allowable under the constitution, did not entitle the applicant to an exemption, where she did not show the separate value of the property actually occupied by her as a residence, nor give any data by which it could be ascertained.

(c) Under the preceding rulings, the appeal as amended did not reasonably comply with requirements of the constitution itself as to what should be shown in claiming an exemption, and consequently no decision is required as to the validity of statutes under which the applicant alleged that the board of tax assessors acted in disallowing her claim.

2. The failure of the board of tax assessors to disallow the claim for exemption until the applicant had paid the amount of taxes otherwise due did not relive her from paying taxes on the amount finally disallowed as an exemption; the exemption being claimed for the years 1941 and 1942, and approved by the tax receiver, but disallowed by the tax assessors in 1943.

(a) There is no merit in the contention that the taxing authorities were estopped by such delay.

(b) The appeal as amended was properly dismissed on general demurrer.

No. 14778. MAY 2, 1944. REHEARING DENIED JUNE 9, 1944. Mrs. Nancy Harper excepted to a judgment of the superior court, sustaining a general demurrer and dismissing her appeal filed in that court and later amended, in which she asserted a homestead exemption for the years 1941 and 1942, after the disallowance of her claim by the board of tax assessors, which had been made under the pertinent amendment to the constitution as ratified on June 8, 1937. Ga. L. 1937, p. 1122; Ga. Code Ann., § 2-5008.

In the original appeal, it was alleged "that application for homestead exemption was filed by Mrs. Nancy Harper for years 1941 and 1942 and with the tax receiver of Fulton County. The said tax receiver determined the eligibility of said applicant to claim the exemption and approved the same and transferred his approval to the board of tax assessors for final determination . . . On the 25 day of January, 1943, the said board of tax assessors . . notified said applicant that the said application for homestead was denied."

The appeal was several times amended, and as finally amended, contained, among others, the following allegations: "The defendants contend that said exemption was denied for years 1941 and 1942 and she was duly notified of said decision . . on January 25, 1943, . . for the reason that at her home known as 228-230 Mercer Avenue, College Park . . `appellant's claim for homestead exemption on the property so located embraced a three-unit apartment and store building,' which appellant denies. Appellant says on said property are located three building, one being a dwelling in which she has [resided] and now resides, an old store building which has not been used during said years and not now, but was during said time and now is used to store furniture of herself and members of her family in the armed service of [the] country, now at war, and is otherwise used as dwelling in the rear, and another building used as a garage and apartment (up and down), all being very modest establishments, all assessed at total of $1550, and she was exempted for only $1200 thereof . . she having paid taxes on $350 thereof for both years." Appellant "is informed and believed that defendants have heretofore allowed and passed her a partial homestead exemption on a portion of said property or one of said dwellings in the said years of 1941 and 1942, as the law contemplated, but that now since the war and the loss of revenue, the said board arbitrarily seeks to set aside its former action, of which she had no notice at all or within time to act thereupon as the law contemplates and provides, and this court should enjoin them from so doing, after they have so acted and after she has paid her taxes for said years, she having applied for said exemption and paid her taxes with full notice and ample time and opportunity to said defendant to act seasonably and within the time contemplated by law and good conscience and equity. . . There is no board of tax appeals in Fulton County, and no taxes have accrued which applicant has not paid. She has owned and resided at said location since the autumn of 1919; said property is occupied primarily as dwellings; that same is her actual domicile and legal residence and her permanent home, and she owns and maintains the same as such and at times with others of her family who are morally dependent upon her for care, protection, and shelter."

In one amendment, she attacked as unconstitutional several sections of the act approved December 16, 1937 (Ga. L. Ex. Sess., 1937-1938, p. 145), as to the method of determining homestead exemptions, and parts of later acts relating to the same subject. Ga. L. 1939, p. 99; Ga. L. 1943, p. 101. 1. The court did not err in sustaining the general demurrer and dismissing the appeal. The provision of the constitution under which the exemption was claimed is as follows: "Beginning January 1, 1938, there shall be exempted from all ad valorem taxation for State, county, and school purposes the homestead of each resident of this State actually occupied by the owner as a residence and homestead, to the value of $2000, and only so long as actually occupied by the owner primarily as such, with the exception of taxation to pay interest on and retire bonded indebtedness. Such value to be determined in such manner and according to such rules and regulations as may be prescribed by law. The General Assembly may from time to time, as the condition of fiscal affairs of the State, counties, or schools may warrant, lower said exemption to not less than $1250." Constitution of Georgia as amended June 8, 1937; Ga. Code Ann., § 2-5008.

The plaintiff in error contends that under this amendment she was entitled to the exemption, as approved by the tax receiver, to the amount of $1200, but that she was denied the same by the board of tax assessors under the terms of the statutes. She contends that the statutes are invalid because they undertake to prescribe rules for determining eligibility, whereas, under the constitutional provision the General Assembly was authorized to prescribe rules only for determining value; and that the statutes are therefore unconstitutional and void as attempting to amend and abridge the exemption given by the constitution.

This court will always abstain from passing upon the constitutionality of an act of the General Assembly, if there is any other valid ground upon which to base a decision. McGill v.Osborne, 131 Ga. 541 (2) (62 S.E. 811); Georgia Power Co. v. Decalur, 173 Ga. 219 (3) (159 S.E. 863). Under this principle, none of the attacks upon statutes should be determined in the instant case. This is true because, under the terms of the constitution itself, the applicant failed to show that she was entitled to the exemption claimed. In her appeal as amended she alleged that on the lot claimed as exempt were "three buildings, one being a dwelling in which she [the applicant] has and now resides, an old store building which has not been used during said years and is not now, but was during said time and now is used to store furniture of herself and members of her family in the armed service of country now at war, and is otherwise used as a dwelling in the rear, and another building used as a garage and apartment . . all assessed at total of $1550, and she was exempted for only $1200 thereof." The constitution exempts the homestead of each resident, "actually occupied as a residence and homestead, to the value of $2000, and only so long as actually occupied by the owner primarily as such." In this case, exemption was claimed as to an entire lot, and three buildings, when only one of the buildings was actually occupied by the applicant as a residence. Regardless of whether, on the facts alleged, the old store building might be included as a part of the homestead, the allegations construed, as they must be, most strongly against the pleader, show that the "building used as a garage and apartment," was not occupied by the applicant as a residence, primarily or otherwise. It is true the applicant alleged that the entire property was assessed at $1550, whereas an exemption to the maximum of $2000 is allowable under the constitution. The applicant's right, however, was limited to property occupied by her as a residence, even though its value was less than $2000. The value of such property was not stated, nor was there any averment of fact by which it could be determined. Thus, her claim as finally presented, disclosed merely that she owned property assessed in gross at $1550, that this property consisted of a lot and three buildings, at least one of which could not be included in the homestead, and did not show the separate value of this building or other parts of the property. The constitution itself requires that property claimed as a homestead be reasonably separated and separately valued, instead of being commingled with other property under a gross valuation.

To what amount would the applicant be entitled, with the value of the "garage and apartment" building deducted? Her pleadings do not show. In the circumstances, her claim did not reasonably comply with the requirements of the constitution. CompareClegg-Ray Co. v. Indiana Scale Truck Co., 125 Ga. 558 (54 S.E. 538); Fallen v. Electric Appliance Co., 42 Ga. App. 96 (154 S.E. 915).

2. Under the act approved March 31, 1937 (Ga. L. 1937, p. 517, Ga. Code Ann., § 92-6913), which is not attacked, the county board of tax assessors "shall make such investigation as may be necessary to determine the value of any property upon which for any reason all taxes . . have not been paid in full," and to assess against the owner "the full amount of taxes which have accrued and which may not have been paid." It is apparent from the allegations of the appeal in this case that investigation by the board of tax assessors disclosed that the $1200 exemption, as approved by the tax receiver for this entire property, was not allowable, and that no proper claim had been made. It thus became their duty to disallow the exemption and make an assessment accordingly.

There is no merit in the applicant's contention that because of the delay of the tax assessors in disallowing her claim, the taxing authorities are estopped to demand taxes on the amount disallowed as an exemption. Code, § 89-903; Georgia Railroad Banking Co. v. Wright, 124 Ga. 596 (10), 615 (53 S.E. 251);Duncan v. Proctor, 195 Ga. 499, 501 (24 S.E.2d 791).

We have retained jurisdiction of this case because the constitutionality of statutes was drawn in question, without reference to whether an appeal in such a matter could be employed to invoke equitable jurisdiction, as the appeal here sought to do. Burns v. State, 191 Ga. 60 (1, 4) (11 S.E.2d 350);McDowell v. McDowell, 194 Ga. 88 (20 S.E.2d 602).

The appeal as amended was properly dismissed on general demurrer.

Judgment affirmed. All the Justices concur.