Case-fowler Lumber Co v. Winslett, (No. 6741.)

• Decision Date: 20 July 1929
• Docket Number: (No. 6741.)
• Citation: 149 S.E. 211,168 Ga. 808
• Parties: CASE-FOWLER LUMBER CO et al. v. WINSLETT, Tax Collector, et al.
• Court: Georgia Supreme Court

168 Ga. 808

149 S.E. 211

CASE-FOWLER LUMBER CO et al.

v.WINSLETT, Tax Collector, et al.

(No. 6741.)

Supreme Court of Georgia.

July 20, 1929.

(Syllabus by the Court.)

Beck, P. J., and Hines, J., dissenting.

Error from Superior Court, Bibb County; Malcolm D. Jones, Judge.

Petition by the Case-Fowler Lumber Company and others against U. T. Winslett, Tax Collector, and others. Judgment for defendants, and plaintiffs bring error. Reversed.

Jones, Jones & Johnston, of Macon, for plaintiffs in error.

Geo. M. Napier, Atty. Gen., T. R. Gress, Asst. Atty. Gen., and E. B. Weatherly, of Macon, for defendants in error.

RUSSELL, C. J. Paragraph 66 of section 2 of the General Tax Act of 1927 is as follows: "Upon every person, firm, or corporation engaged in the manufacture of lumber products of any character, or dealing in lumber or lumber products, whether for themselves or as agents or brokers, in or near cities of 1000 inhabitants and not more than 10, 000, $10.00; in or near cities of more than 10, 000 and not more than 20, 000 inhabitants, $50.00; in or near cities of more than 20, 000 inhabitants, $100.00 for each place of business." The comptroller general of the state and the tax collector of Bibb county were endeavoring to collect from the plaintiffs $100 as occupational tax. The plaintiffs filed a petition asking an injunction upon the grounds that they are not liable for the $100 tax, because they are sawmill operators, and the act does not in express terms place a tax on sawmill operators; and that section 66 is illegal, null, and void, because the phrase "in or near cities" makes the paragraph vague, uncertain, and indefinite; that "dealing in lumber products" is incapable of definition, and for that reason said paragraph is vague, uncertain, indefinite, and void; that paragraph 66 is a violation of the Constitution, art. 7, § 2, par. 1, because the classification of manufacturers according to population of towns and cities is unreasonable. The injunction was refused, and the petitioners excepted.

As will be noted, the plaintiffs make several attacks upon the license tax which is sought to be enjoined. We do not deem it necessary to deal with all of these questions. If for any of the reasons asserted the ordinance in question is invalid, the plaintiffs would not be subject to the tax, and the statement of other reasons justifying our conclusions would be superfluous and unnecessary. It is well settled that, where a case can be decided without passing upon the constitutionality of a legislative enactment, it is proper to prætermit any ruling upon the constitutionality of the act; and, as we think para-graph 66 of section 2 of the General Tax Act of 1927 invalid as against an attack which does not involve the constitutional questions raised, we shall place our decision in this case upon the assignment of error alleging that such section is unlawful, null and void, because the words "in or near cities" render the paragraph too vague, uncertain, and indefinite to be capable of legal enforcement. It is a well-settled rule, so ancient as to entitle it to veneration, that statutes levying taxes should be construed most strongly against the government and in favor of the citizen. In the very thoroughly considered case of Mayor, etc., of Savannah v. Hartridge, 8 Ga. 23, in which Judge Lumpkin thoroughly analyzed the subject of taxation, the principle we have just stated was fully expounded. It is interesting to note that Judge Lumpkin classified taxation "in reference to the subject-matter * * * into three classes— capitation, property, and income; and where one or more is treated of or acted upon, the other is never intended." An occupation tax such as we are now dealing with is included within the term "capitation" as that word is used by the courts. In the Savannah Case, supra, an additional rule was stated, which must also be taken into consideration in the decision of this case: "Statutes which impose restrictions upon trade, or common occupations, must be construed strictly."

It appears from the evidence in this case that the plaintiffs in error are engaged in the lumber business and sawmilling; they buy timber and cut it into lumber, dressing the lumber and manufacturing a large portion of it into boxes or trimpack for customers in states other than Georgia. Their business may be called one of the common occupations. The evidence shows that the plants of the plaintiffs are without and beyond the corporate limits of the city of Macon. Are they liable to a tax imposed upon any of the persons named in the act, no matter how the nomenclature of these businesses are defined? That their businesses are not located within the corporate limits of the city of Macon is clear and admitted; but in another portion of the act a definition of the word "in" is made so as to include a distance of one mile beyond the corporate limits of Macon as defined by its charter. However, as the nearest plant of those involved in this case is a mile and a half from the corporate limits, and the plants of the other plaintiffs are at a still greater distance,...