Hobbs v. Nichols

223 Ga. 639 (1967)

157 S.E.2d 294

HOBBS et al. v. NICHOLS et al.

24246.

Supreme Court of Georgia.

Submitted September 14, 1967.

Decided September 21, 1967.

Rehearing Denied October 5, 1967.

George P. Dillard, Herbert O. Edwards, Robert E. Mozley, for appellants.

Rich, Bass, Kidd & Broome, Casper Rich, for appellees.

GRICE, Justice.

The overruling of a general demurrer to a petition seeking certain ad valorem tax relief is the judgment for review here. The petition was filed in the Superior Court of DeKalb County by Donath Nichols and others, as citizens and taxpayers, against Vernon E. Hobbs, R. Worley Field and Thomas G. Smith, as tax assessors, and other state and county officials. It prayed, among other relief, that the 1967 DeKalb County tax digest be declared void, that the State Revenue Commissioner and the board of commissioners of roads and revenues of the county be enjoined from levying any tax based upon such digest, and that the county tax commissioner be enjoined from collecting any taxes predicated upon it.

This petition, as we evaluate it, fails to set forth a cause of action.

It is not necessary to assess the charges against the tax digest. We regard as fatal the plaintiffs' noncompliance with the maxim that "He who would have equity must do equity." Code § 37-104.

The liability for 1967 taxes accrued on January 1, 1967. Code § 92-6202. And the plaintiffs' petition, construed most strongly against them as must be on general demurrer, admits that they owe some amount of taxes to DeKalb County for 1967. Yet, nowhere in their petition do they allege payment or offer to pay any 1967 taxes.

It is well settled that a taxpayer seeking tax relief must pay or offer to pay the amount of taxes he admits to be due, in order *640 to obtain the relief sought. Trust Investment &c. Co. v. City of Marietta, 216 Ga. 788, 789 (119 SE2d 568). In such situation tender is not excused because a taxpayer's petition shows that "the tax rate has not been fixed." Walker v. Burns, 220 Ga. 467 (139 SE2d 389).

In view of the foregoing, the judgment overruling the general demurrer to the petition is

Reversed. All the Justices concur, except Almand, P. J., who is disqualified.