Bohler v. Error

• Citation: 49 Ga. 195
• Parties: JOHN A. BOHLER, tax collector, plaintiff in err0r. v. ERNEST R. SCHNEIDER et al. defendants in error.
• Decision Date: 31 July 1873
• Court: Supreme Court of Georgia

49 Ga. 195

JOHN A. BOHLER, tax collector, plaintiff in err0r. v. ERNEST R. SCHNEIDER et al. defendants in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1873.)

Constitutional law. Tax. Injunction. Before Judge Gibson. Richmond County. At Chambers. June 4th, 1873.

The tax collector of Richmond county, having assessed a license tax of $250,00 upon each of the defendants in error, as wholesale dealers in malt liquors, under section 2, paragraph 9, of the Tax Act, approved 20th of February, 1873, and executions having been issued therefor upon their failure to pay, they filed their bill to enjoin the levying and collecting of said executions—maintaining that they were not wholesale dealers, in the proper sense of the term; that the Act is unconstitutional and void, because though called a license tax, it is in fact a tax upon property, and should be uniform and ad valorem; that even if it is a specific tax, it is not a tax levied under circumstances authorized by the Constitution, viz: for educational purposes; that even if it is a special tax and levied for educational purposes, it is still unconstitutional, in that it is not ad valorem; that the tax collector is seeking to enforce such Act for a time when it was not obligatory upon the inhabitants of this State; and that if it is a license tax, that authority is alone conferred upon the city of Augusta.

The tax collector, by his answer, maintained that he had assessed said tax on the first day of April, 1873, when said *Act was of force and obligatory on the inhabitants of this State; that said Act is constitutional; it does not impose a tax on property which must be uniform and ad valorem, but a special or license tax on business; that he assessed said tax against said parties as wholesale dealers in malt liquors, which business they were transacting at said time in said county, and upon their failure to pay said tax, he proceeded to issue executions therefor, in obedience to law, and under instructions of the Comptroller General, to hold liable, among others, "dealers who sell ale and porter in bottles packed in casks, by the cask;" that said parties were wholesale dealers in malt liquors, and legally liable for the tax; that as there could be no judicial interference with the collection of a State tax—which this is—he protested against the granting of the injunction, as without warrant of, and in violation of law.

The Chancellor sanctioned the bill, and ordered the injunction to issue. Whereupon the defendant excepted.

Claiborne Snead; J. C. C. Black, for plaintiff in error.

This tax is authorized by the Act approved February 20th, 1873: See Acts 1873, p. 64. This Act is constitutional: See Constitution of 1868, Art. VI. sec. 3; Kenny et al. v. Harwell, 42 Ga. 416.

The Judge granted the injunction because the tax was neither ad valorem nor uniform. This special tax authorized by Article VI. section 3 of the Constitution, is an exception to the rule, requiring taxation to be uniform and ad valorem:

42 Ga., 416, Cooley's Constitutional Limitations. See p. 496.

The Act was obligatory, having been approved February 20th, 1873, and published within ten days after the adjournment of the session, by resolution, approved February 19th, 1873. The tax was assessed 1st April, 1873, a month or more after the publication of the Act: See Pamphlet Acts 1873.

The Act of December 24th, 1791, giving the city of Augusta "sole regulations and power of governing and directing *taverns, and granting licenses, " is repealed by the Act of February 20th, 1873, and the Constitution of 1868, Article VI. section 3, if there is any conflict between them. But we maintain that they are not in conflict. The authority conferred on the city of Augusta by the Act of 1791, cannot be authority to license all businesses, but a proper construction of the Act, limits the authority to grant licenses to taverns or retail dealers. The Act of 1873 levies a tax on wholesale dealers. Under the Act of 1791, the city of Augusta may license the business for the city. Under the Act of 1873, the State levies a State tax for the county in which the business is carried on. The use of the term license tax may somewhat confuse the question. But in fact this is a special tax, as authorized by Article VI. section 3, of the Constitution, to be devoted to the support of common schools. Was it contemplated that the city of Augusta should so devote it?

It was necessary for the Act to devote it to the common school fund, it is already devoted by the Constitution.

The Court was prohibited from interference by injunction: Code 3618; 45 Ga., 85.

Barnes & Cumming, for defendants.

1st. The paragraph of the Act under which the license tax is assessed provides that the tax shall be assessed against wholesale dealers in malt liquors. The complainants deny that they are wholesale dealers in malt liquors. An issue of fact is raised which can only be decided by a jury.

2d. The Act is void for uncertainty. Neither the Act in question nor any other statute of the State defines what is a wholesale dealer in malt liquors. Neither is there any law authorizing the Comptroller General to prescribe a definition. For him to attempt it, is to attempt the exercise of lagislative power. It cannot be defined by a resort to dictionaries, nor by the usages of trade in its sale to dealers or consumers. It can only be defined by statute, and just as a retailed dealer in spirituous liquors is defined by statute.

Is it a tax or a license? If a tax, it is an attempt on the part *of the Legislature to impose on the sale of malt liquors, or the owners who sell the same in large quantities, a burden for the support of Government not imposed on other citizens. It is to all intents and purposes a tax on property. As such it is an unconstitutional tax, because itis not ad valorem and uniform: Cons., Art. I. sec. 27; 41 Ga., 21.

If not a tax on property, but a specific tax, as provided for in third paragraph, Article VI. Constitution, it should be an ad valorem tax: Judge Warner, 42 Ga., 427.

Again, if a specific tax, then it could only be assessed for educational purposes. The Act does not appropriate it to educational purposes. Former Tax Acts did, in terms, make such appropriation of such taxes: See tax Acts of 1868 and 1869. The Comptroller General has no right so to appropriate it. Who shall draw it from the treasury and so appropriate it? This can only be done by law: Cons. Art. III. sec. 6, paragraph, 1. Such law can be passed only by the Legislature. It is not for any executive officer to assume its functions.

If it is not a tax but a license, then the sole power of granting the license has been delegated to Augusta: Act of 24th of December, 1791; Watkins' Dig. 453. This Act not repealed by Tax Act of 1873: 15 Ga., 361. And inforced by virture of the Constitution: Art. XI. par. 4.

At the time of the passage of the Act of 1791, the Constitution, then in force, did not prohibit in the body of the Act any matter different from what is expressed in the title: See Cons. 1789. The delegation of this power to the cities of Savannah and Augusta applies to wholesale as well as...