Atlanta Nat. Bldg. & Loan Ass'n v. Stewart
| Decision Date | 30 January 1900 |
| Citation | 35 S.E. 73,109 Ga. 80 |
| Court | Georgia Supreme Court |
| Parties | ATLANTA NAT. BUILDING & LOAN ASS'N v. STEWART, Tax Collector. SOUTHERN HOME BUILDING & LOAN ASS'N v. SAME. SOUTHERN EXP. CO. v. SAME. SOUTHERN BELL TELEPHONE & TELEGRAPH CO. v. SAME. |
TAXATION — EXEMPTIONS — TELEPHONE COMPANIES — OCCUPATION TAX — EXPRESS COMPANIES — UNIFORMITY — CONSTITUTIONAL LAW — CORPORATIONS — BUILDING ASSOCIATIONS—TAX ON STOCK — ASSETS — COUNTY LEVY—VALIDITY—CHOSE IN ACTION.
1. The constitution of 1868 (article 1, § 27) provided that "taxation on property shall be ad valorem only, and uniform on all species of property taxed." As long as that constitution was of force, the general assembly had power to exempt one species of property and tax another; and this exemption could be either express, or result from a failure to provide that a given specfes of property should be taxed.
2. The constitution of 1877 (article 7, § 2, par 1) provides that "all taxation shall be uniform upon the same class of subjects, and ad valorem on all property subject to be taxed within the territorial limits of the authority levying the tax. and shall be levied and collected under general laws." Under this constitution the general assembly cannot lawfully either expressly exempt from taxation, or accomplish this result by a failure to tax. any property except that which in the constitution itself the general assembly is expressly authorized to exempt.
3. The tax of one dollar for each telephone station or box which is imposed by paragraph 2 of section 9 of the general tax act of 1896 upon telephone companies is an occupation or business tax, and not a tax upon property.
4. The tax of 2 1/2 per cent, on the gross receipts of express companies imposed by paragraph 1 of section 9 of the general tax act of 1890 is an occupation or business tax, and not a property tax.
5. Whether occupations shall be taxed, and, if taxed, how they shall be classified, are questions referred by the constitution to the generalassembly; but all such taxes, when levied, shall be uniform upon the same class of subjects.
6. As the general assembly has no power to exempt property from taxation by simply failing to provide proper machinery for the collection of the tax, a tax act will not be construed as failing so to provide, unless such construction is absolutely demanded by the terms of the act.
7. The general assembly has no power to declare that an occupation or business tax shall be levied upon certain classes of corporations, which, when collected, shall be received in lieu of all other taxes upon the property of such corporations.
8. All property, of every nature whatsoever, except that which the constitution expressly declares the general assembly has power to exempt from taxation, within the limits of this state, whether belonging to individuals or corporations, is not only subject to taxation, but must be taxed, and the general assembly has no power to declare otherwise.
9. When a tax act provides machinery ample in its nature to bring under taxation all of the property of an individual, such machinery may be used to bring under taxation the property of corporations.
10. When a tax act provides machinery suitable to be used in bringing under taxation the property of all private corporations, such machinery may be resorted to for bringing under taxation the property of a corporation which the same paragraph of the law has unconstitutionally declared shall not be taxed in the manner therein prescribed.
11. The general tax act for 1896 provides for machinery which is ample in its nature to bring under taxation all such property of incorporated companies as is involved in the present cases.
12. Has the general assembly the power to levy a tax upon the property of certain classes of individuals and corporations, and withdraw from the various counties of the state the power to tax the same?
13. The tax imposed upon the stock of the stockholders of building and loan associations under section 7 of the general tax act of 1896 is a tax on the shares, as the property of the shareholders, and is not a tax on the property of the corporations.
14. The general assembly has power to levy a tax upon the shares of stock of an incorporated company, as the property of the shareholders, and also a tax upon the property of the corporation.
15. The general assembly has no power to provide that a tax shall be levied and collected upon the shares of the members of a private corporation, and that such tax shall be received in lieu of all other taxes against such corporation.
16. The obligation which a borrowing member of a building and loan association has assumed to such association is an asset of the corporation; and, to the extent of its market value, whatever that may be, it is subject to the ad valorem tax which has been levied upon all property within the state.
17. Has the general assembly the power to declare that certain designated property has no value, and therefore shall not be returned for taxation?
18. As the officers having in charge the affairs of a county are authorized to levy certain taxes without a recommendation of the grand jury, it is incumbent upon one who attacks a levy for county taxes made by such officers without the recommendation of the grand jury, in excess of 50 per cent, of the state tax, to distinctly allege and prove that the excess was levied for some purpose for which such officers had no right to levy the tax without the recommendation of the grand jury.
19. The provisions of section 400 of the Political Code, to the effect that it is the duty of the county authorities "to see that by the time of the organization of the grand jury at the spring term they shall have prepared by their county treasurer, under their supervision, a statement of the financial condition of the county, and the amount of tax required to discharge the county liabilities for that year, which shall be by the treasurer presented to the foreman of the grand jury on the first day of court, for inspection of that body, " are merely directory, and not mandatory; and the failure of the county authorities to comply therewith does not affect the validity of the tax levy made during the year.
20. A chose in action owned by a resident of this state, although the debtor is a nonresident, is taxable as property in this state, no matter where the evidence of the debt may be actually located. There is nothing in the interstate commerce clause of the constitution of the United States, or the laws passed in pursuance thereof, which would have the effect of prohibiting the taxation of such property by the authorities of this state.
(Syllabus by the Court.)
Error from superior court, Fulton county; J. H. Lumpkin, Judge.
Suits by the Atlanta National Building & Loan Association, the Southern Home Building & Loan Association, the Southern Express Company, and the Southern Bell Telephone & Telegraph Company against A. P. Stewart, tax collector. Judgments for defendant, and plaintiffs bring error. Affirmed.
Burton Smith, Dorsey, Brewster & Howell, W. A. Wimbish, Ellis & Ellis, F. G. Du Bignon, and Arthur Heyman, for plaintiffs in error.
L. Z. Rosser, for defendant in error.
The four corporations named as plaintiffs in error each filed its petition in the superior court of Fulton county, alleging that the tax collector of Fulton county was attempting to enforce the collection of taxes which they were respectively not required by law to pay, and praying that he be enjoined from so doing. The injunction was refused in each case, and the plaintiffs excepted.
The following sections of the general tax act of 1896 are involved in the discussion which will follow:
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