STATE OF GEORGIA et al. v. CALLAWAY, executor, et al.

Fisi-i, O. J., and Hines, J.

The act of 1918 (Georgia Laws 1918, p. 232), approved July 31, 1918, is in part as follows: “ That when the owner of property has omitted to return the same for taxation at the time and for the years the return should have been made, or, having returned his property or part of the same, lias grossly undervalued the property returned, or his property has been assessed for taxation at a figure grossly below its true value, such owner, or, if dead, his personal representative or representatives, is required to return such property for taxation for each year he is delinquent, whether delinquency results from failure to return or from gross undervaluation either by the delinquent or by assessors, said return to be made under the same laws, rules, and regulations as existed during the year of said default, or said property was returned or assessed for taxation at figures grossly below its true value.” Section 3 is as follows: “Be it further enacted, that when sucli property is of that class which should be returned to the tax-receiver of the county, the said tax-receiver shall notify in writing such delinquent, or, if dead, his personal representative or representatives, of such delinquency, requiring that a return shall be made thereof within twenty days.” Section five provides: “That if the delinquent or his personal representative or representatives, as provided under section 3 of this act, refuses or fails to return such property after notice given him, it shall be the duty of the tax-receiver to assess such property for taxation from the best information he can obtain as to its value for the years in default, and notify such delinquent of the valuation, which shall be final, unless the person or persons so notified raise the question that it is excessive; in which event the further procedure shall be by petition in equity in the superior court of the county where such property is assessed.” Section 8 is: “ That all laws and parts of laws in conflict with this act be and the same are hereby repealed.”

The assessments of the property for taxation, involved in this case, having been made in July, 1919, and the arbitration proceedings as to such assessments having been had in September of that Jear, the above-quoted provisions of the act of 1918 provided the remedy, that is, by petition in equity, by the dissatisfied delinquent taxpayer, for having such assessments corrected because excessive. The laws fixing procedure for arbitration of tax assessments claimed by delinquents to be excessive, in force prior to the enactment of the act of 1918, are by it repealed. It follows, therefore, that the arbitration proceedings for the assessments of property for taxation here involved, and the award made by the arbitrators, were wholly void; and the petition now under review for the purpose of setting aside the void award was unnecessary, and the judge of the superior court did not err in sustaining the demurrer to the petition and dismissing the same.

It follows that we concur in the judgment affirming the judgment of the lower court, sustaining the demurrer of the defendants to the supplementary petition in this case. We do so because the complainants have an adequate, full, and complete remedy at law. The arbitration proceedings were null and void under the act of August 17, 1918 (Georgia Laws 1918, p. 234 et seq). Under this act there is now no provision of law for arbitrating an assessment made by a receiver of property of a delinquent taxpayer, claimed by the latter to be excessive. In the case of such delinquent taxpayer any objection to the assessments by the receiver, on the ground that they are excessive, must be raised by petition in equity, addressed to the superior court of the county where such property is assessed, under section 5 of this act. This being so, the complainants have a full and complete remedy at law. This void award did not stand in the way. The tax-collector can issue his executions based upon the assessments made by the receiver, and proceed to collect the taxes thereunder. If the executor of the delinquent taxpayer is dissatisfied with these assessments, on the ground that they are excessive, he has his remedy under this act. We concur in the judgment of affirmance, solely on the ground that the award was void, and equity will hot undertake to set aside a void proceeding which does not stand in the way of the enforcement of the payment of taxes, based upon these assessments by executions, levies, and sales.

The cross-petition sought to introduce new and distinct matters not involved in the original action, and the court erred in not dismissing it on demurrer. Peterson v. Lott, 137 Ga. 179 (73 S. E. 15); Atlanta Northern R. Co. v. Harris, 147 Ga. 214, 218 (93 S. E. 210). Judgment affirmed in part, and reversed in part.

All the Justices concur, except Hill and Gilbert, JJ., absent.

Beck, P. J.

I concur in the judgment of affirmance in this case; though I doubt whether the provision in the act of 1918, declaring when the alleged delinquent taxpayer may resort to equity, is applicable under the facts of the record. The petition in the present case is supplementary to the former original petition in which the petitioners sought to show that the proceedings before the arbitrators were illegal for certain specified reasons. Among the reasons specified, there was no claim that under the act of 1918 the arbitrators in this case could not entertain an appeal from the assessment made by the tax-receiver. But construing that original petition as a whole, it recognized the right of the taxpayer to have arbitration. Furthermore, the complainants participated in the arbitration, and can not now raise objections to the jurisdiction of the arbitrators, based upon the act of 1918, after having in their original petition recognized that the arbitrators would have had jurisdiction but for the reasons there pointed out. I also concur in the judgment of affirmance on the ground that equity will not afford the relief here sought, as the petitioners have a statutory remedy as pointed out above, even if the act of 1918 is applicable to this ease.

Atkinson, J.,

concurring. Construing tbn petition most strongly against the pleader, the sole ground of attack upon the award was that the valuation placed upon the property was so grossly inadequate as to show fraud upon the part of the arbitrators. The assignments of error in the bill of exceptions are limited to that question. Under the act by virtue of which the arbitration was had, Political Code, § 1116(d), the arbitrators had jurisdiction, and their power was limited to the question of valuation of the property, and their decision was final. Valuation of property was necessarily a matter of opinion. It would require actual fraud or corruption on the part of the arbitrators, to set aside the award. In this view the allegations of the petition were insufficient to show fraud, and the court properly dismissed the petition on demurrer. In view of the record in the trial court and the assignments of error in the bill of exceptions, it is unnecessary to make a ruling as to the applicability or effect of the act of 1918.