
    Georgia Midland & Gulf R. R. Co. v. The State.
    1. This case is controlled by The Columbus Southern Railway Co. v. Wright, comptroller-general.
    
    
      2. The law under which the execution for taxes issued in this case being constitutional, and so far as appears being applied correctly as against the corporation now complaining, in view of the construction put upon the law by this court, the affidavit of illegality touching the assessment of taxes against the Southwestern R. R. Co. would, if true, show nothing more than that the law has been misconstrued or misapplied as touching that company, and if so, this would be no cause for arresting the present execution by affidavit of illegality. A tax-payer cannot protect himself against a legal and proper demand for his own taxes, by alleging that another tax-payer has been assessed for taxation in a way to render his taxes less than they ought to be under a proper administration of the law.
    3. A tax-payer who avails himself of an affidavit of illegality authorized by the statute to resist an execution for taxes, must abide by the statute as to such remedy, or abandon the remedy altogether. It follows that where the statute makes the affidavit of illegality returnable to a particular court, it cannot be returned or transferred to any other court.
    April 19, 1892.
    By two Justices.
    Illegality. Taxation. Constitutional law. Statute. Before Judge Marshall J. Clarke. Fulton superior court. September term, 1891.
    To an execution issued by the comptroller-general against the railroad company, for county tax alleged to be due by it to Muscogee county under the act of 1889, the defendant filed' an affidavit of illegality. A demurrer to this affidavit, and a motion of defendant to transfer the case to the superior court of Muscogee county, were argued together. The demurrer was sustained and the motion to transfer was overruled, and the company excepted.
    The grounds of illegality were : (1) There is no authority of law for the assessment or levy of the tax, or for the issue of execution ■ therefor, the act of 1889 under which the assessment and levy were made and execution issued being unconstitutional, null and void, because in violation of paragraph one, section two, article seven ; paragraph one, section four, article one; paragraph two, section six, article seven; paragraph one, section one, article seven, of the constitution. Pursuant to the requirement of section one of the act of 1889, but not conceding the validity of the same, defendant made return to the comptroller-general for 1890, which return was correct and accepted as correct by the comptroller-general, who thereupon assessed against it county tax under said act for each of the counties through which it ran, based upon the rate of taxation for such counties and the valuation of the property in such counties and pro rata of personalty. The return made by defendant and the statement of the assessment of the comptroller-general are set out in full in the affidavit. At the same time the comptroller-general, under the act, assessed against the Southwestern Railroad Company county taxes for the counties through which it runs, based upon the income estimated on mileage. The tax levied upon defendant and for which the fi. fa. is issued is not uniform, in that on foui’teen miles of track and other property of defendant located in Muscogee county, and the pro rata amount of personalty, on an assessed valuation of $124,120, a tax of two and a half mills is levied, making $310.30, whereas the Southwestern Railroad Company with twenty-two and a quarter miles of track and other property located in said county, which, with a similar apportionment of personalty, is of the value of over $225,000, would be subject at the same rate to a tax of $562.50, is not taxed upon any valuation whatever of its said property, but is only taxed in said county one half of one per cent, on $39,750, its net annual income apportioned according to its mileage in said county. ! The total net annual income of the one hundred miles of defendant’s road is $68,928.04, which, being apportioned, as aforesaid, according to mileage, would make it taxable in Muscogee county on $9,649.22, of which one half of one per cent, would be $48.25. The aggregate mileage of the Southwestern railroad is $203.39, and its aggregate value about $1,700,000, each more than double that of defendant, and it is taxed under the act only on $354,-447, its net income. In like manner the Georgia Railroad Company for 227 miles, the Central for 208 miles, the'Western & Atlantic for 121 miles, and the Augusta & Savannah for 53 miles, each of value approximately in proportion to mileage, are not under the act taxed on their respective values, but only on their incomes, whereby a greatly less amount in proportion to the value is required of them than of defendant. (2) The taxation is not uniform within the territorial limits of the State (the authoiity levying the tax), the percentage varying in'the several counties through which the defendant’s railroad runs, as appears from the comptroller-general’s assessment. Said act is an exercise by the General Assembly of its powers of taxation over the whole State, and is not for any one of the purposes limited in the constitution. It is a tax levied, assessed and sought to be collected directly by the State, and not a power to tax delegated to the county as provided in the constitution, and would not be protected by the constitutional restrictions of such delegated power, and said tax would be for no purpose authorized by the constitution. Under the constitution, taxation for county purposes must be delegated to the counties and cannot be exercised by the State directly, as is sought to be done by said act. The general laws of the State (Code, §§502-541, 3943) and the general law in regard to returns of taxes to the receivers of tax returns, and the collection thereof by the tax-collectors of the several counties, make ample provisions for the assessment, levy and collection of all taxes by counties and for county purposes; and under the constitution no special law can be enacted affecting railroad corporations ; and this corporation has never consented to but has always protested, and does now protest against the varying of said general law, in so far as it affects its particular case. So far as said act seeks to tax the personal property and rolling-stock of defendant and other railroad ■ companies, as provided in section three, it is null and void, becaune the method of apportioning such taxation prescribed therein is unintelligible and not susceptible to construction. In so far as said act may be construed to seek a distribution of the taxation of said personalty and rolling-stock along the entire line of the road, it is unconstitutional and void, because the situs of such property is the domicile or chief office of defendant, Muscogee county, and there alone, if at all, it is subject to be taxed.
   Judgment affirmed.

Goetchius &• Chappell, for plaintiff in error.

Clieeord Anderson and W. C. Glenn, contra.  