Carreker v. Green & Milam Inc.

■ Jenkins, Justice. It is the general rule that “injunction will lie, at the instance of any taxpayer who has not estopped himself, to enjoin a sale of Kis property to collect an unauthorized tax.” Fulton Trading Co. v. Baggett, 161 Ga. 669 (2), 671 (131 S. E. 358); Vincent v. Poole, 181 Ga. 718, 720 (184 S. E. 269), and cit. This is true for the reason that, unless authorized by statute, “an affidavit of illegality [is not] a proper remedy to contest the illegality of an execution in the nature of a tax execution.” Goolsby v. Board of Drainage Comrs., 156 Ga. 213 (6, b) (119 S. E. 644). Accordingly, since the taxpayer ordinarily has no adequate remedy at law, statutes expressly authorizing an appeal to equity have been enacted. See Code, §§ 92-6102, 92-6104, 92-6803, as to taxes on properties returnable to the comptroller-general; § 92-6804, as to taxes on properties returnable to county tax-receivers; §§ 92-6805, 92-6806, 92-6807, as to municipal taxes on unreturned properties; Lane v. Unadilla, 154 Ga. 577 (2) (114 S. E. 636). But where, as in the instant case, one complains of the illegality of a taxing statute or collection procedure thereunder on an attempted collection of an execution issued by the State Revenue Commission, the foregoing rules and decisions are not applicable, since it has been held by this court, that, under section 80 of the '“reorganization act” of 1931 (Ga. L. 1931, p. 33; Code, § 92-7301), he “has an adequate remedy at'law” by '“affidavit of illegality.” Hicks v. Stewart Oil Co., 182 Ga. 654 (4), 657 (186 S. E. 802). See also City of Nashville v. Lanier Motor Co., 183 Ga. 742 (189 S. E. 532). Under this ruling, it is unnecessary to determine as to the validity of the income-tax act [865] of 1929, or the procedure by tbe State Revenue Commission, under the constitutional questions raised in the petition. Judgment reversed. All the Justices concur.