Duty of courts to stop unconstitutional tax collection proceedings.

- When any ministerial officer of the state is attempting to collect money out of a person, natural or artificial, under the forms of law, but without any constitutional law to authorize the process the officer uses and calls an execution for taxes, it is the duty of the courts, on a proper case made, to arrest the proceeding in some of the modes known to the law, and to afford relief to the party complaining. Wright v. Southwestern R.R., 64 Ga. 783 (1880).

Rule not applied in favor of tax collector seeking reimbursement from taxpayers.

- Tax collector who has settled the collector's tax digest with the state and county may use the executions the collector has issued against delinquent taxpayers to reimburse the collector by collecting from the taxpayers their unpaid taxes, but the collector is not entitled to the immunity from judicial interference which the law provides for the state, and the collector can only collect such tax as is legally due. State ex rel. Gilbert, 51 Ga. 252 (1874).

Fact that tax proceeds are appropriated to a specific object or purpose does not authorize judicial interference. Yancey v. New Manchester Mfg. Co., 33 Ga. 622 (1863).

No interference on account of informalities or irregularities in collection.

- When there is a valid law imposing tax for the state there will be no judicial interference in the collection on account of informalities or irregularities in the return or assessment. Decker v. McGowan, 59 Ga. 805 (1877); Georgia Mut. Loan Ass'n v. McGowan, 59 Ga. 811 (1877); Burke v. Speer, 59 Ga. 353 (1877).

Execution issued by the tax collector in due form cannot be properly resisted by interposing an affidavit of illegality. Georgia Trading Co. v. Marion County, 114 Ga. 397, 40 S.E. 250 (1901).

Writ of prohibition does not lie against a tax collector who is alleged to be proceeding to levy an illegal tax. The parties complaining must pay the tax, and then pursue their remedy against the tax collector as an individual. J.A. & W.H. Cody v. Lennard, 45 Ga. 85 (1872).

Mandamus will not lie as a remedy to compel a sheriff to accept an affidavit of illegality filed to an execution issued by the comptroller general (now commissioner) against a tax collector in default and the collector's bondsmen for the reason that the sheriff must make the sheriff's return to court under this statute and the comptroller-general (now commissioner) is not a court. Webb v. Newsom, 138 Ga. 342, 75 S.E. 106 (1912).

Availability of injunctive relief.

- General rule is that no injunction will lie to interfere with collection of taxes. Before enjoining taxation, the law and the facts must be such as to clearly require such action. Candler v. Gilbert, 180 Ga. 679, 180 S.E. 723 (1935); Kent v. Murphey, 207 Ga. 707, 64 S.E.2d 49 (1951).

In a suit to enjoin enforcement of a tax execution issued by a city and levied upon property in which the plaintiff, not the defendant in fi. fa., alleged an interest, the plaintiff did not have an adequate remedy at law, and the petition stated a cause of action. Wilson v. City of Eatonton, 180 Ga. 598, 180 S.E. 227 (1935).

General rule is that no injunction will lie to interfere with the collection of taxes. Derrick v. Campbell, 219 Ga. 795, 136 S.E.2d 381 (1964).

Injunction against excessive levy.

- Injunction, when properly invoked, is an available remedy to restrain the collection of an unlawful exaction in the form of a tax based upon an excessive levy, and one need not await the levy of a tax execution before seeking such relief, and need not pay or tender any part of a tax under a levy wholly void. Williams v. Hutchins, 212 Ga. 594, 94 S.E.2d 412 (1956).

Powers of court of equity as to tax collection.

- Statute means that court of equity will not interfere with tax officials leaving injured party to the party's statutory remedies, such as claim and illegality. Kirk v. Bray, 181 Ga. 814, 184 S.E. 733 (1935).

Power to levy and collect taxes is exclusively a legislative function, and unless authorized by statute, a court of equity is without the power to foreclose a lien for taxes and order a sale of the property. No such power having been conferred by statute on a court of equity in this state, the court erred in decreeing that land be sold by the sheriff for the payment of state and county taxes. Kirk v. Bray, 181 Ga. 814, 184 S.E. 733 (1935).

Injunction against tax sale.

- When the petitioner has an adequate and complete remedy at law by the filing of a claim in the event of an attempted sale of the property, the petitioner is not entitled to an injunction. Kirk v. Bray, 181 Ga. 814, 184 S.E. 733 (1935).

When purported tax fi. fa. is of an origin unauthorized by law, the taxpayer is entitled to an injunction to prevent sale of property. Vincent v. Poole, 181 Ga. 718, 184 S.E. 269 (1936).

Statute does not apply to municipal taxes. Elder v. Atlanta-Southern Dental College, 183 Ga. 634, 189 S.E. 254 (1936).

Judicial interference with collection of taxes.

- While judicial interference with collection of state taxes is prohibited, there is no prohibition against judicial interference with collection of municipal taxes. Dodson Printers' Supply Co. v. Upham, 179 Ga. 353, 175 S.E. 920 (1934).

When purposes for which taxes are levied seem lawful, and the general system of taxation and the amount of money to be raised thereby appear proper in view of the city's obligations, the courts should be slow to stop the wheels of municipal government, and throw the municipality's affairs into anarchy. Kent v. Murphey, 207 Ga. 707, 64 S.E.2d 49 (1951).

Payment of taxes as prerequisite to granting judicial relief.

- One seeking relief from excessive tax levies, but admitting either expressly or by necessary implication that one owes part of the tax covered by such executions, must pay or offer to pay the amount of the taxes admitted to be due, in order to obtain the relief sought. Derrick v. Campbell, 219 Ga. 795, 136 S.E.2d 381 (1964).

Defense against execution issued for taxes collected but not accounted for.

- An execution issued by the comptroller general (now commissioner) against a tax collector and the collector's sureties, for money alleged in the execution to have been collected by the tax collector and not accounted for, cannot be arrested by an affidavit of illegality. Perkins v. State, 101 Ga. 291, 28 S.E. 840 (1897).

C.J.S.

- 85 C.J.S., Taxation, § 1204 et seq.