City of Atlanta v. Gower, 20988

Citation216 Ga. 368,116 S.E.2d 738
Decision Date11 October 1960
Docket NumberNo. 20988,20988
PartiesCITY OF ATLANTA v. William L. GOWER et al.
CourtSupreme Court of Georgia

Syllabus by the Court.

1. The General Tax Ordinance, as amended, of the City of Atlanta, approved March 23, 1960, in so far as it purports to tax professions licensed by the State, in excess of the amount authorized by the act approved February 25, 1953 (Ga.L.1953, Jan.-Feb.Sess., pp. 207-208), is ultra vires and void.

2. 'The legislature may make classification for purposes of legislation and pass general laws with reference to such classes. * * * The basis of classification must have some reasonable relation to the subject-matter of the law, and must furnish a legitimate ground of differentiation. Mere arbitrary discriminations are not permissible under the constitution.' Stewart v. Anderson, 140 Ga. 31, 33, 78 S.E. 457.

William L. Gower and others, as duly admitted and practicing attorneys at law with offices located in the City of Atlanta, (in their own behalf and for others similarly situated as practicing a profession), filed their petition for equitable relief against the city. Constitutional attacks under both the State and Federal Constitutions were made on various sections of the General Tax Ordinance of the city as amended (on March 23, 1960) by the mayor and board of aldermen, which amendment recites that, 'pursuant to Georgia, laws 1959, page 3251, as amended by act of the General Assembly of Georgia, approved March 17th 1960 and known as House Bill 1007, the General Tax Ordinance for 1960,' adopted October 5, 1959, is amended, etc. The ordinance as amended levied a tax of $50 for the remainder of the year 1960 on the practice of professions licensed by the State. The prayers were that these sections as set forth in stated paragraphs of the petition be declared illegal, null, and void, that the city be enjoined from enforcing the ordinance and the sections thereof, and for other relief.

A temporary restraining order was granted. On the hearing for an interlocutory injunction counsel for the citt made an oral motion to dismiss the petition in the nature of a general demurrer, which was denied. This judgment is assigned as error, it being contended that such ruling was error and 'contrary to law with respect to each and every ground thereof.'

J. C. Savage, Edwin L. Sterne, Robert F. Lyle, Atlanta, for plaintiff in error.

Wm. T. Brooks, Atlanta, for defendant in error.

Arnall, Golden & Gregory, Atlanta, for parties at interest, not parties to record.

HEAD, Presiding Justice.

By an act approved August 17, 1920 (Ga.L.1920, p. 16), § 88 of the General Tax Act of 1918 (Ga.L.1918, pp. 43, 66) was amended so as to provide that 'NO MUNICIPAL CORPORATION OR COUNTY AUTHorities shall levy or collect any additional tax on the professions, businesses or occupations enumerated' in § 88. The amendment of 1920 was included in the General Tax Act of 1927, paragraph 3, (Ga.L.1927, pp. 56, 58), and in the General Tax Act of 1935, paragraph 3, (Ga.L.1935, pp. 11, 13), relating to professions. By an act approved February 19, 1951 (Ga.L.1951, pp. 157-175), many provisions of the General Tax Act of 1935 were repealed in their entirety, including paragraph 3 of that act, imposing a tax upon professions. By an act approved February 25, 1953 (Ga.L.1953, Jan.-Feb.Sess., pp. 207-208), the General Assembly provided that no municipal corporation or county authority shall levy or collect any license, occupation, or professional tax on professions classified and formerly taxed by the General Tax Act, including the practice of law, except in the place where the practitioner shall maintain his principal office. It was further provided that such levy 'shall not exceed the levy imposed under the laws of the State of Georgia as the same existed in 1950.' Under paragraph 3 of the General Tax Act of 1935, the State tax imposed upon attorneys and other professions was $15. The act of 1935 is a general law having State-wide application, and in the absence of some other constitutional general law, the City of Atlanta would be prohibited by the act of 1953 from levying a tax on the professions named in the General Tax Ordinance of the city in a sum greater than $15.

Municipal corporations can levy no tax, general or special, upon the inhabitants of the municipality, or upon property therein, unless the power to do so be plainly and unmistakably granted by the State, and the burden is upon every political subdivision of the State which demands taxes from the people to show authority to exercise it in the manner in which it has been imposed by a valid law of this State. Lane v. Mayor and Council of City of Unadilla, 154 Ga. 577, 114 S.E. 636; O'Neal v. Whitley, 177 Ga. 491, 492, 170 S.E. 376; Pullman Co. v. Suttles, 187 Ga. 217, 199 S.E. 821; Lewis & Holmes Motor Freight Corp. v. City of Atlanta, 195 Ga. 810, 25 S.E.2d 699; Publix-Lucas Theaters v. City of Brunswick, 206 Ga. 206, 210, 56 S.E.2d 254.

In the present case, the City of Atlanta relies on an act of the General Assembly approved March 25, 1959 (Ga.L.1959, pp. 3251-3252), as amended by an act approved March 17, 1960 (Ga.L.1960, pp. 2847-2848), as legislative authority for the amendment to the General Tax Ordinance of the city. The 1959 act is as follows:

'Section 1. This Act shall apply to all cities in the state having a population of more than 300,000 according to the last or any future Federal Decennial Census.

'Section 2. The mayor and board of aldermen of such city shall have full power and authority to require any person, firm, corporation or company engaged in, prosecuting or carrying on, or who may engage in, prosecute or carry on any trade, business, calling, avocation or profession, to register their names and businesses, calling, avocation or profession annually, and to require such person, company or association to pay for such registration and for license to engage in, prosecute or carry on such business, calling or profession aforesaid, such fee, charge or tax, as said mayor and board of aldermen may deem expedient for the safety, benefit, convenience and adventage of said city. Said tax, registration fee or license herein provided for shall be imposed in the discretion of the mayor and board of aldermen.

'Section 3. All laws and parts of laws in conflict herewith are hereby repealed.'

Under the rulings of this court in Stewart v. Anderson, 140 Ga. 31, 78 S.E. 457, the legislature would be authorized to make a classification of cities on the basis of population, and pass a general law with reference to such classification, provided the basis of classification has some reasonable elation to the subject matter of the law, and furnishes a legitimate ground for differentiation, and provided that the act is so framed as to let in all cities coming within the population classification, and let out all cities falling...

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23 cases
  • Perkins v. Eskridge
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    ...v. Penland, 260 N.C. 502, 133 S.E.2d 206, 208 (1963), although at least one still applies it, see, e. g., City of Atlanta v. Gower, 216 Ga. 368, 116 S.E.2d 738, 742 (1960). Another view regarding the effect of an unconstitutional statute-which Professor Field refers to as the 'presumption o......
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