City Council Of Augusta v. Clark & Co

• Decision Date: 13 November 1905
• Citation: 52 S.E. 881,124 Ga. 254
• Court: Georgia Supreme Court
• Parties: CITY COUNCIL OF AUGUSTA et al. v. CLARK & CO.

52 S.E. 881

124 Ga. 254

CITY COUNCIL OF AUGUSTA et al.

v.CLARK & CO.

Supreme Court of Georgia.

Nov. 13, 1905.

1. Licenses — Municipalities — Classification—Review by Court.

When a city charter authorizes a municipality to require by ordinance a license tax of persons engaged in any occupation, trade, or business carried on within the corporate limits of the city, the municipal authorities may by ordinance classify the different occupations for taxation, and impose different taxes in different amounts upon the different classes; and a classification made by such authorities will not be interfered with by the courts, unless it manifestly appears that the classification is unreasonable and arbitrary.

2. Same—Arbitrary Classification.

The classification of persons lending money upon personal property or personal security in a different class from chartered banks, negotiators of loans on realty, real estate agents and dealers in bonds and stocks, and the imposition of a tax differing in amount upon such money lenders from that imposed upon such other classes, is not so wanting in reason that the ordinance providing for such classification will be declared void as being entirely arbitrary.

3. Usury — Penalty — Power of Municipality to Impose.

In the absence of express charter power, the authorities of a municipality have no authority to impose a penalty upon one charging usury.

4. Licenses — Ordinance —Money Lenders.

A tax ordinance imposing a license tax on money lenders, and providing that the license shall be void whenever the usury laws of the state shall be violated, is invalid so far as the forfeiture is concerned, but valid as to the tax upon. the business.

5. Same—Bond—Validity of Requirement.

A tax ordinance fixing the amount of tax to be levied upon an occupation, and requiring the person engaged in this occupation to give a bond in conformity with an act of the General Assembly, is not void as to the tax, even though that part of the ordinance requiring the bond may be invalid.

(Syllabus by the Court.)

Error from Superior Court, Richmond County; H. C. Hammond, Judge.

Action by Clark & Co. against the city council of Augusta and others. Judgment for plaintiffs, and defendants bring error. Reversed.

Clark & Co. filed a petition for injunction against the city council of Augusta and the sheriff of the city, containing substantially the following allegations: On December 22, 1904, the city council of Augusta adopted an ordinance levying taxes for the support of the government of the city for the year 1905, and in the ordinance a license or business tax of $350 was imposed upon a certain class of persons, to which plaintiffs belonged; such class being described in the ordinance as follows: "Money Lender. A money lender as contemplated by this ordinance is one who carries on the business of lending his own or other peoples money, and not as a stock and bond broker, pawnbroker, chartered bank, negotiator of loans on realty, real estate agent or firm of such agents, or dealers in bonds and stocks as herein provided, but who carries on the business of lending money on personal security or personal property, other than stocks and bonds, shall also be deemed a money lender, $350.00. Provided, this license is issued by the city and accepted by the licensee with distinct understanding and agreement that whenever the licensee in the conduct of his business shall violate the usury laws of Georgia, this license shall be thereby forfeited, and from the date of such violation it shall not be lawful for such licensee to do further business under this license, and must file a bond in conformity with state law. Money lender, agent or agency for collection of claims, or carrying on business in the city, whether office located in city or not, subject to foregoing provisions, $350.00." It is alleged that that portion of the ordinance just quoted is void, first, because it discrimi-nates against money lenders of the class to which plaintiffs belong in favor of negotiators of loans on realty, who are really money lenders under another name, the license upon the latter being only $50, and that this discrimination is in violation of that provision of the Constitution of the state which declares that all taxes shall be uniform upon the same class of citizens; second, the ordinance provides that the license shall be forfeited when one holding the same shall violate the usury laws of the state, the provision for forfeiture being void for the reason that the state statutes on the subject of usury are exhaustive in reference to penalties and forfeitures; third, the ordinance requires the applicant for the license to file a bond in conformity with the state law, and the state law referred to, being the act of August 15, 1904 (Acts 1904, p. 79), is violative of the Constitution of the state of Georgia, the provisions which it violates being those which declare that protection to person and property is the paramount duty of the government, and that no person shall be deprived of life, liberty, or property without due process of law; and that citizens of the United States residents of this state shall be declared citizens of this state, and it shall be the duty of the General Assembly to pass such laws as will protect them in the full enjoyment of their rights, privileges, and immunities of citizenship; and that laws of a general nature shall have uniform operation throughout the state, and no special law shall be passed in any case for which provision has been made by general law; and that the right of the people to be secure in their houses and persons against unreasonable searches and seizures shall not be violated, and that the act also violates that provision of the fourteenth amendment of the Constitution of the United States, which declares that no state shall deprive any person of life, liberty, or property without due process of law, or deny to any person within its jurisdiction the equal protection of the laws. It is alleged that the city council of Augusta and the city sheriff, attempting to enforce the provisions of the state law and the ordinance against plaintiffs, have caused execution to be issued which has been levied upon the property of the plaintiffs, and that the sheriff will proceed to sell the same, unless steps are taken to stop the sale. It is alleged that the plaintiffs were engaged in the business of lending money in the city of Augusta when the ordinance was passed. The prayers of the petition are for injunction to restrain defendants from proceeding further with the execution, for general relief, and for process. To this petition the defendants filed a demurrer and an answer. The answer admitted the allegations so far as they related to the existence of the ordinance, but denied that the ordinance was in any way in violation of either the Constitution of Georgia or the Constitution of the United States. It was alleged in the answer that the plaintiffs had not paid the license in accordance with the ordinance, and that they had never in any way complied with the statute referred to, and that they had never filed the bond required by the ordinance, nor in any way complied with the statute referred to...