(After making the foregoing statement.)
1. Shortly after the lease by the Georgia Eailroad to Wadley was ■made, it was assigned to the Lonisville & Nashville Eailroad Company, which subsequently became the sole lessee of the Western Eailway of Alabama; and in 1899 the Atlantic Coast Line Company acquired a half interest in the lease. Under the terms of "the lease, the lessee companies were bound to pay all taxes that might be collectible from the lessors. In August, 1901, the- Louisville & Nashville Eailroad Company and the Atlantic Coast Line •Company, citizens respectively of Kentucky and Virginia, filed in "the United States circuit court for the northern district of Georgia a bill in equity against Wright, comptroller-general, and the Georgia Eailroad and Banking Company, reciting that the comptroller-general had demanded of the Georgia Eailroad taxes upon its fifteen thousand shares of stock in the Western Eailway of Alabama for the year 1900, that under the lease to them the lessee companies, and not the Georgia Eailroad, would have to pay the tax if it were collected; that under the laws of Georgia the shares in question were not subject to taxation; and praying that the comptroller-general be enjoined from collecting, and the Georgia Eailroad from paying, the tax demanded, On the hearing before the judge of the circuit court an injunction was granted. The comptroller-general, desiring to appeal the case, served on his .codefendant, the Georgia Eailroad, the following written notice: “A decree having been entered in the above-stated case against the defendants, and William A. Wright, comptroller-general, one of the defendants, desiring to appeal to the circuit court of appeals, you as a codefendant therein are hereby respectfully notified to appear and join in the appeal.” Service of this" notice was acknowledged, and .the reply made thereto that “Defendant hereby refuses to join in said appeal, being content with the decree rendered in said cause.” An order was then taken by the comptroller-general, permitting him to make the appeal alone, and this was accordingly done. The circuit court of appeals affirmed the decision of the circuit court, and the case was then taken by certiorari to the Supreme Court of the
In the suit in the Federal court the Georgia Eailroad was nominally a codefendant of the comptroller-general, but in reality an adverse party at interest. The judgment enjoining it from paying the tax was exactly what it desired, and its interest lay in affirming, rather than in disturbing that judgment. Consequently, when its codefendant, the comptroller-general, took the case to the higher court, if it desired, in its own name, to be represented in the appellate proceedings as to its real and substantial, rather than its fictitious interests, it had every opportunity by appropriate adversary pleadings to place itself nominally as well as really at arm’s length with its codefendant. It preferred, however, to leave its lessors to defend its substantial rights, and to allow the judgment, nominally against it but really in its favor, to remain undisturbed by any act of its own. The judgment- of the Supreme Court of the United States was rendered in a case-to which, nominally, it was not a party, but which involved questions very vital to it and to which it had every opportunity to be made a party in its own name, The judgment against the Louisville & Nashville and Atlantic Coast Line companies necessarily and in terms carried with it an adjudication that the Georgia Eailroad was liable for the tax on this stock for the year 1900; and when, in accordance with -the mandate of the Supreme Court of the United States, the original bill in equity filed by the two plaintiff companies was dismissed, the Georgia Eail-road was concluded as to all questions growing out of that cause of action which were or might have been raised by it to protect its interests in that suit. “The mere circumstance of any persons hav
2. Counsel for the Georgia Eailroad, however, contend that even, if it is concluded by the judgment of the Supreme Court of the. United States as to its liability for the tax sought to be enjoined, in the proceeding before that court, the estoppel of the judgment, extends only to the question of the railroad’s liability for the tax-for the year 1900, and that it is not cut off from contesting the validity of the tax for all the other years involved in the present, suit, from 1883 to 1904 inclusive. The question turns, of course,, 'largely if not entirety upon whether suits for different taxes, or for taxes for different years, constitute different causes of action;, for suits to enjoin the collection of taxes would necessarily be governed by-the same principles. In 2 Cooley on Taxation, 845, it is. said: “Upon the question whether a judgment establishing a liability to pay- taxes for certain years is, in a subsequent action between the same parties, res adjudicata as to the liability for taxes of a succeeding year when the facts affecting the liability are the-same in the two cases, the authorities do not agree. It is held in. Iowa, Kentucky, Michigan, Mississippi, and Tennessee, that the judgment for a tax is conclusive as to that tax merely, and in suits, for taxes of other years is important only as a precedent. [Citing Davenport v. Chicago R. Co., 38 Ia. 633, 640; Newport v. Commonwealth (Ky.), 50 S. W. 845, s. c. 51 S. W. 433; Louisville Bridge Co. v. Louisville (Ky.), 58 S. W. 598, s. c. 65 S. W. 814; Michigan R. Co. v. Auditor-General, 9 Mich. 448; Lake Shore R. Co. v. People, 46 Mich. 193; Adams v. Yazoo R. Co., 77 Miss. 194; State v. Bank, 95 Tenn. 222; State v. Bank, 95 Tenn. 231; Union Bank v. Memphis, 101 Tenn. 154.] Eecent decisions of the Federal Supreme Court maintain the contrary doctrine but have not met the=
As stated in Anderson’s Law Dictionary, p. 157, jurists have found it difficult to define the term “cause of action.” It is defined as: “The right which a party has to institute and carry through a proceeding. The act on the part of the defendant which gives the plaintiff his cause of complaint. . . A wrong committed or threatened.” Id. “Matter for which an action may be brought.” 1 Bouv. L. Diet., 295. “A 'cause of action’ is the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact which, if traversed, the plaintiff must prove in order to obtain judgment.” 1 Stroud, Jud. Dict. (2d ed.) 275. See also City of Columbus v. Anglin, 120 Ga. 775 (3). If, as indicated by the definition given by Bouvier, the subject-matter of the suit be the cause of action, there is no room for doubt that the present suit is on a different cause of action from the one instituted in the Federal court, except in so far as it seeks to enjoin the collection of taxes for the'year 1900; and this view seems to be in harmony with the great weight of authority in tax cases. Identity of principles involved does not give rise to an estoppel by judgment. It may be ■controlling as precedent in the decision of the later ease; but it does not cut the losing party off from a hearing in court. If such were not the case, to adopt the illustration given in the Kentucky case of Newport v. Commonwealth, which has'already been cited, a man charged under two indictments for exactly similar offenses against the same penal statute would be cut off, after conviction under one indictment, -from setting up any defense under the other. Confusion on this subject, we think, is doubtless responsible for the later decisions of the Supreme Court of the United States to which
3. It is contended broadly by counsel for the plaintiff in error that shares of stock in a foreign railroad company, whose line of Toad lies outside this State, are not taxable in Georgia; and they rest this contention upon the decision in Wright v. Southwestern R. Co., 64 Ga. 783, where (p. 799) it was held that stock in railroads without the limits of this State is not taxable here, and that “stock in a railroad is really but so many shares of its property, and that property is real estate, for-the most part at least, and taxable by the State in which the road is located.” Counsel for the comptroller-general in their brief refer to the language quoted as a “dictum” of Mr. Justice Jackson, who delivered the opinion, and' •contend that the decision was ill-considered and unsound. It is not •contended, however, that the language was obiter, or that the question decided was not necessarily involved in the decision of the ■case. A careful study of the opinion, as well as of the original record in that case, convinces us that the point was necessary to the ■decision; and however ill-considered, unsound, or unsupported by ■authority it may have been, it was the solemn judgment of a full bench, having, until overruled by a later decision or altered by legislative enactment, the force of a valid statute. See Heard v. Russell, 59 Ga. 54. The decision was not so much one of taxation or exemption; for, as pointed out in the able brief of counsel for the qolaintiff in error, the tax act of 1874, with which the decision had to deal, required that all the property of railroads should be taxed; nor (though the language of the opinion might be considered susceptible of a different construction) did it decide that stock of a railroad or other corporation is not property, for at the time the decision was rendered there was in existence a statute, which is still ■of force, expressly declaring stocks representing shares in an incorporated company holding lands, or a franchise in or over lands, to be personalty. Wright v. Southwestern R. Co. adjudicated merely that the situs of stock in a, railroad company whose road
4. It is insisted, however, that the act of 1885 was unconstitutional, in that it contained matter different from that expressed in its title, and, as persuasive evidence of that contention, it is pointed out that in compiling the Code of 1895 the codifiers left out the-second section of the act, though other portions of the act were-codified. The title of the act is as follows: “An act to provide for-the correct returns of the property in this State for the purpose off taxation, and for other purposes.” The body, so far as it relates, to this discussion, has already been set out in the preceding division of this opinion. It is well settled that “provisions germane to the-general subject-matter embraced in the title of an act, and which are designed to carry into effect the' purpose for which it was passed, may be constitutionally enacted therein, though not referred, to in the title otherwise than by the use of the words and for other purposes/ ” Banks v. State, 124 Ga. 15 and cit. The general subject-matter embraced in the title of the act now under consideration-is to provide for the correct returns for taxation of the property in this State. Certainly the ascertainment of what constitutes different classes of property, so as to facilitate the making of correct returns, is germane to that general subject-matter; and we do not: hesitate to hold that the attack made upon the constitutionality off the act is without merit.
5. It is further contended, however, that by reason of the fact that this section of the act of 1885 was not incorporated in the Code of 1895, it has been repealed by implication; and in support of this position the cases of Central R. Co. v. State, 104 Ga. 831, and Barnes v. Carter, 120 Ga. 895, are cited. Those decisions merely held, as was inevitable, that by the adoption of .the Code of 1895,
6. There is no arbitrary classification of shares in a foreign railroad corporation for taxation in this State. Shares in domestic corporations are taxed, not in the same manner, but to a like extent with shares in foreign corporations. They are taxed indirectly, through the taxation of the corporation. It is the aim of the State to tax these shares once only in this State — in the case of' domestic corporations they are taxed through the medium of the corporate property, while in the case of foreign corporations, where-the corporate property can not be reached, the shares themselves are directly taxed. That this is lawful, and is not a denial of the equal protection of the laws guaranteed by the constitution of the United States, is abundantly established by authority. Kidd v. Alabama, 188 U. S. 730; Wright v. Louisville & Nashville R. Co., 195 U. S. 219.
7. Nor is this system of taxation in violation of the provision of the Georgia constitution that “all taxation shall be uniform upon the same class of subjects, and ad valorem on all property subject to-be taxed within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws.” This question was squarely decided adversely to the contentions of the railroad company in the case of Wright v. Louisville & Nashville R. Co., 195 U. S. 219, and the reasoning of Mr. Justice Holmes, of the Supreme Court of the United States, on that subject, seems to the writer in every way convincing. The case of Burke v. Bad-
A majority of the court, however, do not think that a decision as to the taxability of domestic stock is necessary in this case. This view is as follows: The constitution declares all property subject to taxation except such as the General Assembly is therein specifically
8. In further support of the contention that in the levy of these taxes the railroads were denied the equal, protection of the laws, it was claimed that only the Georgia and Central Eailroads had been proceeded against for back taxes on shares in non-resident corporations, and that other owners of such foreign shares were not required to pay either present or past-due taxes thereon. In support of this claim affidavits of some forty tax-receivers of different counties in the State were introduced in evidence to show that during their respective terms of office the owners of shares of stock in foreign corporations residing in Georgia had not returned said stock for taxation, and that it had been the uniform practice of the tax-receivers not to require them to return such stock. The record discloses that “it was admitted that the Georgia Eailroad and Banking Company and the Central of Georgia Eailway Company were the only persons owning foreign railroad stock proceeded against for taxes on these kinds of shares. The comptroller-general’s statement that he knew of no other delinquent was also admitted.” Certainly on this showing the court below was authorized to find that
9. On January 27, 1905, the comptroller-general' wrote to the president of the Georgia Eailroad and Banking Company the following letter: “The Supreme Court of the United States having recently held, as you doubtless are aware, that the shares of. stock of the Western Eailway of Alabama owned by the Georgia Eailroad and Banking Company are taxable in Georgia, it becomes my duty to assess these shares of stock for taxation for each of the years »in which they are in default for their taxes. This assessment is required to be made by the comptroller-general from ‘the best information obtainable/ I desire to proceed to the discharge of this duty intelligently, and therefore respectfully request you to furnish me any data in your possession which will enable me to make perfectly fair, just, and legal assessments of this property. From your long connection with the property as President of the Georgia Eail-road and Banking Company, and your familiarity with its value, you doubtless are in possession of information which will very greatly aid me in'making an equitable assessment of the property. I trust, therefore, you will submit at your earliest possible convenience any facts or suggestions bearing upon this line which you may deem proper. I would be glad to have any data which you may submit with reference to its value for each year beginning with the year 1883, the year I am informed your corporation became the owner of these shares of stock. I expect to proceed with this matter some time the early part of next week if possible.” Other correspondence took place between the comptroller-general and various officers of the Georgia Eailroad, including the general counsel, who eventually submitted to the comptroller-general a statement regarding what he considered the value of the railroad property in question, together-
The Political Code, §812, prescribes the method by which “cor■porations, companies, persons, agencies, or institutions” shall make ..returns of their property to the comptroller-general for taxation, ■and provides that “such returns shall be carefully scrutinized by the -comptroller-general, and if in his judgment the property embraced therein is returned below its value, he shall assess the value, within ■sixty days thereafter, from any information he can obtain, and if "he shall find a return of . . matters required to be returned as •aforesaid, below the true amount, or false in any particular, or in ■any wise contrary to law, he'shall correct the same and assess the true amount, from the best information at his command, within ■sixty days. In all cases of assessment, or of correction .of returns, as herein provided, the officer or person making such returns shall receive notice and shall have the privilege, within twenty days after ■such notice, to refer the question of true value or amount, as the ■case may be, to arbitrators, . . and their award shall be final.” Section 813 is as follows: “In cases of failure to make return, the ■comptroller-general shall make an assessment from the best information he can procure, which assessment shall be conclusive upon ¡said corporations, companies, persons, agencies, or institutions.” By section 814 it is provided that “In all cases of default of payment of taxes upon returns or assessments, the comptroller-general ¡shall enforce collections in the manner now provided by law.” “If ;any corporation, company, person, agency, or institution, who are
A question of vital importance is whether sections 813 and 874, entitled respectively, “When no return, comptroller to assess,” and “Defaulting corporations,” have reference only to a total failure on the part of the citizen to make a return, or extend to cases where there has been a return which only partially sets out the property of the taxpaj^er. The latter contingency is certainly not covered by section 812, which has reference, not to an incomplete return, but to an insufficient valuation by the taxpayer. It must be borne in mind that tax laws are to be construed liberally in favor of the power of the State to tax. 27 Am. & Eng. Enc. L. (2d ed.) 699 and note; Board of Commissioners v. Anderson, 68 Fed. 341. In our opinion the only rational construction to be placed on sections 813 and 874 of the Political Code is that they cover as well a partial as a total failure to make returns. Any other construction would lead to a manifest absurdity, and would place the State at the mercy of the
10. The same reasoning is applicable to the contention that by an acceptance of the return on the part of the comptroller-general the transaction is closed, and can not be reopened by the taxing officers. Such a holding would place a premium on deception, would deny the right of the State to correct mistakes for which its officers were not responsible, and would, in effect, give to the acceptance of a tax return the solemn and binding effect of a judgment fixing the amount of taxable property owned by the taxpayer. “An assessment is not a judgment within the doctrine of res judicata, and does not bar or estop a supplemental assessment of property which was, in fact, erroneously omitted, even though its omission in the first instance was the result of a decision by the officers making the regular assessment, holding it to be exempt.” 27 Am. & Eng. Enc. L. (2d ed.) 701; Sturges v. Carter, 114 U. S. 518. Whatever may be the binding effect of the acceptance of returns by the tax officer in a matter involving judicial action (24 Am. & Eng. Enc. L. 723), it can not be claimed that the ascertainment whether the returns accepted embrace all the property owned by the citizen is a judicial act. The fallacy of the “closed book” theory is shown, we think, by section 855 of the Political Code, which provides that “Beceivers and collectors are required to receive the return's and to collect the taxes thereon for former years, when any person is in default, which taxes shall be assessed according to the law in force at the time the default occurred, and shall be so specified in the digest.” It is true that this section in terms refers only to tax-receivers and tax-collectors, and does not mention the comptroller-general of the State. But it must be borne in mind that the section was enacted into law in 1813, at a time when the comptroller-general was merely an auditor of public accounts, and had no powers as a taxing officer, and when all taxable property of every kind was returned to the tax-receiver and collected by the tax-collector. In 1861, for the first time, the comptroller-general was made a tax officer; and it is only reasonable to assume that in delegating to him certain duties which had hitherto been performed by the county officers, the General Assembly intended that he should be clothed with the same powers as they had for the complete and efficient discharge of those duties, so far as applicable. If we are correct in this
Again, by the act of 1813 (Pol. Code, §847), it is provided that if a person fails to make a return, in whole or in part, it is the duty of the receiver to make the valuation and assess the taxation thereon, and in all other respects to make the return for the defaulting person from the best information he can obtain; while by the act of 1804 and its amendments (Pol. Code, §949, par. 2, 11), it is made the duty of the tax-collector “to search out and ascertain as far as possible all polls and professions, and all taxable property not returned to the receiver or not found in his digests,” and “to issue executions against all tax defaulters who are residents of the counties in which said tax-collectors are holding their offices, for any and every year preceding and including the years for which they are elected, and to collect the tax due from said defaulters, and pay over the same to the proper authorities.” Heading together the provisions of sections 847 and 949, and all of the provisions of the code on the subject of the collection of taxes, the conclusion is
11. The Georgia law affords to every citizen, individual or corporate, ample facilities for the preservation of his rights as against the tax-gatherer, always provided that he makes a return to'the proper officer of the property that he owns. It presupposes that the taxpayer will disclose to the officer all of his taxable property, and it requires him to know whether his property is taxable or not. The requirement of candor in disclosing the ownership of property is really at the foundation of our tax system. So long as the citizen ■complies with that requirement, he is afforded every opportunity to dispute with the State the question of the value of his property and the amount of tax to be levied thereon. When he fails to return, in whole or in part, fraudulently or through an honest mistake, he then and there becomes a defaulter, and the door of opportunity is closed to him, so far as the right to have the mutual rights between himself and the taxing power adjusted by arbitration is concerned. In other words, ample “machinery” is available to the citizen who makes full returns; deprivation of the right to be further heard is one of the penalties visited upon the defaulter. The collecting officer must ascertain as best he can the amount of property to be taxed, as well as its value, and take summary means for its collection. This, it seems to us, is the scheme of taxation contemplated by the laws of this State. Whether or not it is consistent with a wise public policy we do not undertake to determine. That it is not unconstitutional we are fully satisfied. 1 Cooley on Taxation, 619-624, and eases cited in notes; Board of Commissioners v. Anderson, 68 Fed. 341; Lott v. Hubbard, 44 Ala. 593; McMillan v. Carter, 6 Mont. 215, s. c. 9 Pac. 906; Orena v. Sherman, 61 Cal. 101; Tucker v. Aiken, 7 N. H. 113; City v. Champion, 58 Conn. 268, s. c. 20 Atl. 471; McTwiggan v. Hunter (R. I.), 29 L. R. A. 526; Board of Revenue v. Montgomery Gas Light Co., 64 Ala. 269; Wabash R. Co. v. Johnson, 108 Ill. 11; Siegfried v. Eaymond, 190 Ill. 424; Goodman v. Halter (Ind.), 47 N. E. 665; Hagar v. Reclamation District,
12. As we have seen, the comptroller-general in making his assessment was only obliged to use “the best information he could procure” 'as the basis of his valuation of the property taxed. There is nothing in the record to indicate that upon that basis the valuation placed upon the shares by the officer was excessive.
13. It can not avail the railroad company that during all the years for which the tax now under consideration was levied it had issued annual statements showing its possession of the shares of stock now sought to be taxed, and that the comptroller-general might have ascertained from these statements, which were easily accessible to him, the Georgia Railroad’s ownership'of the shares. “Estoppels against the State are not favored; and though they may arise from its express grants, they can not arise from the laches of its officers, since persons who deal with an officer of the government are bound to know the extent of his power and authority.” Lott v. Brewer, 64 Ala. 287.
14. In the absence of a statutory provision to that effect, taxes do not bear interest. State v. Southwestern Railroad, 70 Ga. 32(8). Section 887 of the Political Code, providing for the payment of interest on tax fi. fas., was not approved until November 11, 1889, and consequently the comptroller-general can not lawfully exact interest on taxes accrued prior to that time. Under the statute cited the interest dates, not from the time of the issuing of the fi. fa., but “from the time fixed by law for issuing the same.” “Such interest is not in the nature of a penalty.” Sparks v. Lowndes County, 98 Ga. 284.
15. The assessment made on the stock for the year 1883 (which was identical with those made for the other years involved in this litigation, except as to dates and amounts) was in the following language: “Whereas The Georgia Railroad and Banking Company, a corporation chartered under the laws of Georgia and doing business in this State, having failed and refused to return 'for taxation, for the year 1883, 15,000 shares of stock of the Western Railway of Alabama, an Alabama corporation, said stock being then held and owned by said Georgia Railroad and Banking Company in this State, and having failed and refused to pay the taxes due the-State thereon for the year 1883 as required by law, I hereby assess
16. It is insisted by counsel for the plaintiff in error that in the years 1903 and 1904 the Georgia Railroad actually made a return of the stock owned by it in the Western Railway 'of Alabama, though under protest, and that, this being so, the comptroller-general had no right, until after compliance with the provisions of the Political Code, §812, to increase the amount of the return. As it appears from the record, however, that this so-called “return” was merely a statement “for the purpose of furnishing the office of the comptroller-general with information sought by said office, -and not for the purpose of making a return of property for State taxation,” there is obviously no merit in this contention.
17. But it is urged that the claim of the State for these taxes is barred by the statutes of limitation; and this contention is based on several different grounds. The Civil Code, §3777, provides that “When, by the provisions of the foregoing sections [§§3760 to 3776 inclusive], a private person would be barred of his rights, the State shall be barred of her rights under the same circumstances.” This section became a part of the law of Georgia in 1856 (Acts 1856, p. 237). TJp to that time the maxim nullum tempus occurrit regi obtained in Georgia. Brinsfield v. Carter, 2 Ga. 143; Moody v. Fleming, 4 Ga. 116(7); Smead v. Williams, 6 Ga. 159. The act of 1856 is plainly in derogation of the common law and of the rights of the State, and, iinder the well-established rules, must be given a strict construction. In terms it is limited to the “foregoing sections,” that is, the preceding sections, of the 'chapter relating to the general subject of limitations; and therefore it will not be extended to bar the right of the State to any actions not provided for by those sections of the code.
18. Bu+ it is contended that section 3775 is applicable to this
19. Section 3768 of the Civil Code is also pleaded in bar of the 'State’s right to collect these taxes. That section is as follows: “All ■actions upon open account, or for the breach of any contract not Mnder the hand of the party sought to be charged, or upon any implied assumpsit or undertaking, shall be brought within four .years after the right of action accrues.” The principal authority Telied on by counsel to support the contention that this section •covers a claim by the State for taxes is the case of Bristol v. Washington County, 177 U. S. 133, 148. That case went to the Supreme •Court of the United States from Minnesota, and was decided on the authority of the case of County of Redwood v. Winona Land Co., 40 Minn. 512 (also cited as State v. Lands in Redwood County, 42 N. W. 473), in which case the Minnesota court held, that by statute in that State the statute of limitations ran against the State the ¡same as against an individual; that a tax was a liability created by ■statute, and that under a law providing that actions upon a liability ■created by statute should be barred after six years the State could not put in motion the legal machinery provided by statute for the ■'collection of back taxes after that time. There is a vast difference, however, between a liability created by statute and an open account, a contract not under the hand of the party sought to be •charged, or an implied assumpsit or undertaking. The statute passed upon by the Minnesota court, and later by the Supreme 'Court of the United States, is more closely analogous to section
Taxes, however, are not debts within the meaning of the Civil Code, §3768. “A tax, in its essential characteristics, is almost universally held not to be a debt or in the nature of a debt. The-distinction between a debt and a tax is that the one rests' on the contract and the other does not. A debt is a sum of money due by contract, express or implied, while a tax is a charge on person or-property to raise money for public purposes, and operates in in-vitum.” 27 Am. & Eng. Ene. L. (2d ed.) 580, and cases cited im note. See also DuBignon v. Brunswick, 106 Ga. 325. With thia distinction clearly in mind, we think there can be no doubt that; section 3768 of the Civil Code does not raise any bar to the right of; the State to collect back taxes.
20. Finally, sections 890 and 891 of the Political Code are relied on to bar the collection of taxes for more than seven years. My views on this subject are hopelessly at variance with those of a. majority of my brethren. I incorporate herewith their views, and will then endeavor to make clear my reasons for dissenting therefrom.
“That invisible person, or power, or being, or entity, no matter-what it may be called, which for convenience, under our system of government, we call the State, was endowed in the beginning of
“The general rule -is that where an individual would be barred by a statute of limitations the State is likewise barred, under the same circumstances. The exceptions to this rule are few in number. The question now is whether the mere naked claim of the State for taxes which it has' not sought to enforce by execution is barred by any statute of limitation. If the State has attempted to enforce its claim for taxes by execution, that the execution would become barred in the same time and under the same circumstances that an execution issued under an ordinary judgment would be barred is beyond question. Acts 1887, p. 23; Pol. Code, §890. The section of the code just cited provides: ‘All State, county, city, or other tax fi. fas., before or after legal transfer and record, shall be enforced within seven years from the date of their issue; or within seven jrears from the time of the last entry upon the tax fi.. fa. by the officer authorized to execute and return the same, if said entry is properly entered by said officer upon the execution-docket and books in which said entries are now required to be made in cases of entries on executions issued on judgments.’ The section immediately following is in this language: ‘All laws in
“Statutes of limitation are statutes of repose. They are intended to relieve against the hardships inevitably incident to the enforcement of demands of long standing, when the lapse of time would necessarily place the person against whom they are enforced at a disadvantage as to their defenses. In interpreting the act of 1887, the purpose of such a statute must be kept prominently in view. Construing this act as a whole, its language indicates that the purpose of the lawmaking power was to place the State, in regard to its claim for taxes, in the same position that a plaintiff in a judgment would be placed as to the enforcement of a right upon which a judgment was founded. While the statute uses the word 'execution5 and not the word 'judgment,5 there can be no legitimate escape from the conclusion that the legislative intent was' to bring the tax judgment of the State within the dormant-judgment law applicable to cases of individuals. The entries required to be made as tax executions are entries similar to those required to be made on 'executions issued on judgments.5 That the word 'execution5 is to be interpreted in the sense of judgment becomes clear when we refer to the statutes evidently referred to by the expression, 'All laws in reference to a period of limitation as to ordinary executions.5 The only law to which this expression can apply is the dormant-judgment act embraced in the Civil Code, §3761, the effect of which is to destroy the lien of the judgment upon which the execution is
“There is no question of fraudulent concealment of property involved here. The same reasoning, that the lapse of four years did not bar the enforcement of taxes because the statute referred to sujts, would likewise apply to section 3766, which reads that ‘all suits for the enforcement of rights accruing to individuals under statutes/ etc., shall be barred within twenty jrears. Moreover, under the peculiar language of section 3766, and the construction put upon it by this court in Bigby v. Douglas, 133 Ga. 635, and in Savannah Canal Co. v. Shuman, 98 Ga. 171, it would seem not applicable here. In some courts it has been held that suits or proceedings in the nature of suits to recover taxes are like actions to enforce statutory rights, and should be barred accordingly, even though taxes be not mentioned in the statute at all. See what is said in the authority referred to by Mr. Justice Candler, County of Redwood v. Winona Land Company, 40 Minn. 525-6. If the bar does not attach either in four years or twenty years, then it either attaches to the enforcement of taxes by execution under the Political Code, §§890, 891, as to property alleged not to have been returned, or else no statute of limitations applies at all. If no statute applies, then there is no limit beyond which the comptroller-general or tax-collector may not go in issuing fi. fas. It is not a mere question as to the taxes of this corporation. The amount involved in this case is of small importance compared to the establishment of correct rules of law as to taxpayers. Every property owner in the State is subject to taxation; and if the tax-collector can go backwards without limitation, and declare that any taxpayer owned certain property at a given date and failed to return it, assess its value from the best information he can obtain, adding interest, and issue execution therefor, it presents a serious question for all the taxpayers of the State. If any other construction were made than that which we
“A construction which would place no limitation upon the right •of the tax-collector to issue and enforce fi. fas. would mean' public •disaster. Tax is a valuable and necessary thing for the State, but 'the security of the citizen is also good. There may be ctax dodgers/ and men who defraud the government, but tax liens affect the honest as well as the dishonest. Without irreverence, the State in •general laws seeks to follow the Divine- example, when it is said: LHe rnaketh His sun to rise on the evil and the good, and sendeth rain on the just and unjust/ The laws of this State taxing property are uniform. Of course, if the law is plain, we must administer it and not change it, whatever may be the result. But it is well recognized that in construing a statute the court may look to the •old law, the mischief, and the remedy; and with this in view, the legislative intent in making the laws relating to ordinary executions and judgments becoming dormant, applicable to tax executions, should be considered. If the law is not clear, the reasonableness or unreasonableness of a particular construction is a legitimate subject for consideration. Lombard v. Trustees, 73 Ga. 322; Moravian Seminary v. Atwood, 50 Ga. 382; 26 Am. & Eng. Enc. L. (2d ed.) 646. Is it reasonable to suppose that the legislature meant to protect purchasers only if the tax-collector had done his duty and issued execution, but left them in danger and with an overhanging lien, for an unlimited time, if he did not issue an execution? True there is no intervening purchaser here. But under the statute there is no distinction; and if there is no bar as to the defendant, there is none as to a purchaser, however honest. Furthermore, the legislature has declared that interest against a taxpayer runs from the time when an execution should have been issued, and this has been construed to mean December 20, of each year. Surely the State did
“The constitutional prohibition against granting away the right of taxation (Civil Code, §5796) has no relevancy* we think, to the case. The constitution prohibits the grant of privileges and exemptions (except as specified) to corporations and other persons. It says nothing of the time when the execution must be issued or enforced. The legislature has passed many acts prescribing the time within which actions may be brought, but these were not considered unconstitutional violations of property or property rights. A similar question has been passed on by the Supreme. Court of Montana, in Board of Comm'rs v. Story, 69 Pac., 56.”
With the greatest respect for the profound ability and learning of my brethren, I am constrained to register a very earnest dissent from the views above expressed. Their vigorous attack upon the inherent fallacy of the obsolete doctrine of the divine right of kings, and the scholarly narrative of the evolution of human thought resulting in the rejection of this fallacy by advanced and enlightened nations, are both entertaining and instructive; but I fail to see that they illuminate the subject under discussion. It is freely conceded that the theory that the subject exists for the benefit of the sovereign is both “selfish” and “atrocious,” — -it might be even more strongly characterized. I must insist, however, that this theory is not even remotely kin to the one that the right of self-preservation is inherent in the State, be it republican or monarchical in form, and that growing out of this right as a necessary incident thereto is the right to tax the citizen for the support of the government. “The right of taxation is a sovereign right, inalienable, indestructible, — is the life of the State.” I do not contend for the' divine right of kings, but for the inherent, if not divine, right of the State (i. e., the
In my opinion, section 891 of the Political Code was designed to render tax executions dormant in the same manner that executions issued on judgments become dormant. I agree with the contention of counsel for the State that the purpose of the statute is to protect innocent and bona fide purchasers. Stanley v. McWhorter, 78 Ga. 38; Hollis v. Lamb, 114 Ga. 744; Easterlin v. New Home Co., 115 Ga. 309. And I can conceive of no rule of construction by which there can be read into section 891 the meaning that unless a claim for taxes is placed in execution within seven years from tho date of its accrual, the State will, by analogy to the case of one who has obtained a civil judgment which has not been placed in execution, lose the right to issue a fi. fa. and enforce its collection. The argument that the construction of sections 890 and 891 for which I contend would place a premium on official inaction and allow the State to derive an advantage from the negligence of its taxing officers is to me entirely unconvincing. All presumptions are in favor of the faithful and efficient discharge of their duties by officers. On the other hand, the contrary construction will place a premium on concealment, deception, and tax-dodging, which, in human experience if not in human nature, are evils more to be dreaded and more likely to be encountered than official inaction.
As has been seen, a majority of the court is of the opinion that the State’s right to issue execution for taxes is barred after the lapse of seven years from the time when the right to issue such execution accrues. We are, however, unanimous in holding that the statute did not run against the State during the time that the comptroller-general was enjoined by the Federal court from issuing any fi. fa. whatever for taxes on this stock. As will be seen from another portion of this opinion, the only question necessarily involved in the suit in the United States circuit court was the taxability of the stock for the year 1900; and to that extent only does the estoppel by
Mr. Justice Lumpkin concurs with me in the conclusion that I have reached, but, as will be seen, some of the reasoning leading thereto conflicts with the position taken by him in his dissenting headnote, 2(a).
On the main issues of the taxability of the stock in question and the legality of the procedure instituted by the comptroller-general, the court below was right; and therefore the judgment will be affirmed; direction being given, in accordance with the views of the majority, that the comptroller-general and the sheriff be enjoined from seeking to collect any tax on the stock from the plaintiff in error which accrued prior to the year 1895, and that the costs incurred in bringing the case to this court be taxed against the defendant in error.
Judgment affirmed, with direction.