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Unofficial Opinion 97-32

Unofficial Opinion 97-32

November 6, 1997
To: 

Senator
District 21

Re: 

The Erosion and Sedimentation Act requires an applicant for a land disturbing permit to obtain certification that there are no past due ad valorem taxes owed on the property for which the permit is requested.

You have asked for my opinion on the meaning of a 1994 amendment to the Erosion and Sedimentation Act of 1975 (“the Act”), O.C.G.A. §§ 12-7-1 et seq., which requires that, before a land disturbing permit can be issued, the applicant must obtain a statement from the appropriate tax official certifying that “all ad valorem taxes levied against the property and due and owing have been paid.” O.C.G.A. § 12-7-7(f). Specifically, your question is whether an applicant is only required to obtain a certification that all past due ad valorem taxes have been paid. You state that “[s]everal county attorneys” have interpreted that provision to apply to all ad valorem taxes that have been billed, whether they are in a past due status or not. Upon review and consideration of the statute in question, the rules of statutory construction, relevant case law and other statutes, it is my unofficial opinion that the quoted provision in the Act requires an applicant for a land disturbing permit to obtain certification, and for the local tax official to only certify, that there are no past due ad valorem taxes currently owed on the property for which the permit is requested.

A resolution to your question is principally a matter of statutory construction. You have pointed to language in the preamble of Senate Bill 608 of 1994, which amended the Act, as indicative of legislative intent that the certification requirement should apply only to past due ad valorem taxes. However, it is a well-established rule of statutory construction that the language in the preamble of a bill cannot be considered when the language of the law itself is clear and unambiguous. Eastman v. McAlpin, 1 Ga. 157, 171 (1846). The preamble or caption may only be resorted to for purposes of discerning legislative intent when the words used in the act are ambiguous. Id. This is consistent with the general rule that when the language of a statute is plain and unambiguous, judicial construction is prohibited. Jersawitz v. Hicks, 264 Ga. 553, 554 (1994).

Consequently, the first inquiry in this case is whether the meaning of the language chosen by the General Assembly is clear or ambiguous. In my opinion, the meaning of the phrase “due and owing,” which is determinative to your question, is ambiguous. When attempting to determine whether ambiguity exists, resort to other statutes on the same subject is permissible. Oxford v. Carter, 216 Ga. 821, 822 (1961). In this case, although the phrase “due and owing” is used over 60 times in twenty different Titles of the Code, neither it nor its individual words are defined anywhere therein. In the various contexts employing the phrase, it appears to have been used by the General Assembly to refer to both a general obligation to pay a debt not yet due, see O.C.G.A. § 44-12-231(b) (referring to properties “due and owing . . . and not paid over to the commissioner on a timely basis”), and an obligation that is past due or payable immediately, see O.C.G.A. § 48-7-112(d) (authorizing the application of tax refund to set off a debt “due and owing” a state agency). As a general matter, when referring to obligations owed to others or to the state, the General Assembly has chosen to employ a wide variety of terms including “due and owing,” “due and owed,” “due and payable,” “unpaid,” “past due,” “delinquent,” and “final, due, and owing.”

It also appears that there is no plain meaning which can be attributed to the use of either the individual words “due” and “owing,” or this specific combination thereof. A definition of the word “due,” which also includes the phrase “due and owing,” states that both are often (thus, not always) used to refer to a debt whether the time for payment has arrived or not. Black’s Law Dictionary 260 (Abridged 5th ed. 1983). It is further stated, regarding the use of the word “due” with reference as to the time for payment of an obligation, that “there is considerable ambiguity in the use of the term [in that regard], the precise signification being determined in each case from the context.” Id. at 261. Likewise, the Georgia Supreme Court has implied that the word “due,” in the context of a tax obligation, can be used in a narrow sense to denote either those taxes “the time for paying which had arrived or passed,” or, in a larger sense, taxes as a lawful burden “whether the time for payment has arrived or not.” Pope v. Matthews, 125 Ga. 341, 347 (1906) (in that case the court determined that the legislature intended to apply the word in its larger sense).

Because there is considerable ambiguity as to the meaning of the phrase “due and owing,” it is necessary to make a determination of legislative intent. Tabb v. State, 250 Ga. 317, 318 (1982). As I noted above, in making such a determination, resort to the prologue or caption of a bill can be had. In fact, the Georgia Court of Appeals has said that “’[n]othing . . . is more pertinent, towards ascertaining the true intention of the legislative mind in the passage of the enactment, than the legislature’s own interpretation of the scope and purpose of the act, as contained in the caption.’” Copher v. Mackey, 220 Ga. App. 43, 45 (1996) (citations omitted). In this case, the expressed purpose contained in the caption of the bill amending the Act was “to provide that no such [land disturbing activity] permit shall be issued for any land upon which is owing any past due ad valorem taxes.” 1994 Ga. Laws 1650 (emphasis added). Consequently, it appears clear that, in this case, the General Assembly intended the phrase “due and owing” to refer in the narrow sense to ad valorem taxes, the time for paying which had arrived or passed.

Therefore, it is my unofficial opinion that O.C.G.A. § 12-7-7(f) requires that an applicant for a land disturbing activity obtain certification from the appropriate tax official that there are no past due ad valorem taxes owed on the property for which the permit is being sought.

Prepared by:

JOHN E. HENNELLY
Assistant Attorney General


Definitions for “final, due, and owing” (emphasis added) can be found at O.C.G.A. §§ 34-8-272(3), 48-16-3(2), and 48-16A-3(4) and refer to the status of taxes after an appeal, or the time for an appeal, has expired. It is also worth noting that during the same session the General Assembly passed a tax amnesty law aimed at collecting “underreturned, unreturned, or unpaid state and local ad valorem tax liabilities.” 1994 Ga. Laws 428, 430. This may be considered further evidence that the legislative intent for amending the Erosion and Sedimentation Act was to provide another tool aimed at collecting past due ad valorem taxes. See City of Marietta v. Holland, 252 Ga. 299, 302 (1984) (where two bills passed in same legislative session were construed together by the court to determine their shared legislative intent).