Burr & Co. v. The City Of Atlanta

• Decision Date: 30 September 1879
• Citation: 64 Ga. 226
• Court: Georgia Supreme Court
• Parties: Burr & Company. v. The City of Atlanta.

64 Ga. 226

Burr & Company. v. The City of Atlanta.

Supreme Court of the State of Georgia

(September Term, 1879.)

[Warner, Chief Justice, being engaged in presiding over the senate organized as a court of impeachment, did not sit in this case.]

#*Tax Municipal corporations. Constitutional law. Before Judge Hillyer. Fulton Superior Court. March Term, 1879.

Burr & Co. sought to enjoin the City of Atlanta from collecting from them a tax as itinerant traders, under the following ordinance:

"On each S100.00 of the amount of sales of goods, wares, merchandise, produce, shingles, lumber, and all other articles sold by itinerant traders, including those who ship their produce, goods, wares, etc., into the city and sell the same either from the cars or depots or go around the city and sell the same by sample, there shall be levied a tax of $1.50 (excepting those who raise their produce in the country adjacent), " etc

Complainants alleged the following facts: They are provision dealers in St. Louis. About April 1, 1879, they sent one Sharp to Atlanta to sell to the merchants by the car-load corn and meat. He located at the Markham House, a public hotel. Complainants shipped car-loads of corn and meat to him, and he sold them from the cars to the merchants, —some of them came to the cars and bought without solicitation; others he solicited at their places of business and elsewhere. He did not carry around any of the goods nor samples thereof. For two car-loads he did not find a market, and stored them with resident merchants. One has been sold, the other has been levied on under this tax fi. fa. They deny being itinerant traders, and claim that the ordinance is discriminating and unconstitutional.

Defendant's answer denied that Sharp made any sales at the Markham House, but alleged that he sold at the depot and on the streets to merchants and others; also that he sold in towns adjacent to Atlanta, as well as in that city.

The chancellor refused the injunction, and complainants excepted.

There was some question as to the amount of sales, etc., but it is not material here.

Mynatt & Howell, for plaintiffs in error.

*W. T. Newman, for defendant.

JACKSON, Justice.

The plaintiffs in error applied for an injunction to restrain the City of Atlanta from collecting a tax imposed upon them as itinerant traders under the 12th section of the tax ordinance of the city for the year 1878, ending 30th of June, 1879. The chancellor refused the injunction, and they excepted.

The 31st section of the acts of incorporation confers on the city the power to levy and collect such tax from itinerant traders who by themselves or others sell any goods, wares or merchandise in the city, as to them shall seem proper; and therefore there can be no doubt of the grant of power to levy the tax, if the complainants be itinerant traders, and be not protected by some other law.

The facts make them, we think, itinerant traders in the city of Atlanta. They have no place of business here—no store or warehouse—but they ship corn and meat by the car-load to an agent here, who goes about the city and engages to deliver the meat and corn from the car or depot to buyers in the city. They would...