City of Atlanta v. Jacobs

• Decision Date: 16 May 1906
• Citation: 54 S.E. 534,125 Ga. 523
• Parties: CITY OF ATLANTA v. JACOBS.
• Court: Georgia Supreme Court

54 S.E. 534

125 Ga. 523

CITY OF ATLANTA v. JACOBS.

Supreme Court of Georgia

May 16, 1906

Syllabus by the Court.

An ordinance of the city of Atlanta which imposes a license tax on "fire or wreck sales of merchandise (unless the merchandise is salvage from fire or wreck in the city of Atlanta), no license to issue for less than the price of one year, to wit, $200.00," is discretionary and void because it exempts from the tax the sale of salvage from fires and wrecks occurring in the city.

When the only authority for the levy of a tax execution is an invalid municipal ordinance, the person against whom the execution is issued is not compelled to pay it and then resort to the courts in order to get his money back; but he may by an appropriate action contest with the municipality its right to enforce the collection of the tax, and, if no remedy at law be provided for making this contest, he may appeal to equity to restrain by injunction the illegal attempt to enforce payment of the execution.

Error from Superior Court, Fulton County; J. T. Pendleton, Judge.

Bill by Morris Jacobs against the city of Atlanta. Judgment for plaintiff, and defendant brings error. Affirmed.

J. L Mayson and W. P. Hill, for plaintiff in error.

F. M Hughes and Morris Macks, for defendant in error.

EVANS J. (after stating the facts).

1. Our first inquiry will be directed to the validity of the ordinance by virtue of which the city of Atlanta claims the right to collect the license fee by execution against the defendant in error. The charter of the city of Atlanta confers upon the municipal corporation very broad powers of taxation to raise revenue for the city. Ample as the authority to tax may be, the city, in the exercise of its charter power, cannot lawfully impose a tax by the enactment of an oppressive, unreasonable, or discriminatory ordinance. It is well settled that a license tax exacted as a privilege for engaging in a particular vocation, even though the vocation involves the sale of goods, wares, and merchandise is not a tax upon property, but is a tax upon occupation, business, or employment. Atlanta Nat. Ass'n v. Stewart, 109 Ga. 88-89, 35 S.E. 77, and citations. And it is not a valid objection to an ordinance requiring a license tax for conducting a named business that another business or occupation is not taxed, or is taxed a different amount. Weaver v. State, 89 Ga. 642, 15 S.E. 840. While the charter of the city of Atlanta confers the power "to classify business, trades and professions carried on in said city, into such classes of subjects for taxation as may be just and proper," and also to "make a just and proper classification of business for taxation" (Anderson's Code of Atlanta, § § 64, 65, 250), still, when the classification is made, it must operate alike on all persons and property belonging to such class. An ordinance which imposes a tax on nonresident traders, without imposing a like tax on resident traders of the same class, is discriminatory and void. Gould v. Atlanta, 55 Ga. 678. Would it be any the less discriminatory in scope or effect to impose a tax upon dealers in articles manufactured beyond the limits of the city and exempt the same class of articles manufactured in the city? In discussing the validity of the act imposing a tax on dealers in sewing machines, this court recognized the principle that it was not a proper classification to tax dealers in articles made in one place and exempt dealers in the same class of articles from taxation if the article was manufactured in another place. The court, in upholding the validity of the law imposing the tax, said: "The tax is imposed upon the business of selling or dealing in sewing machines in this state, irrespective of the state or country in which the machines are manufactured." Weaver v. State, supra. See, also, Singer Mfg. Co. v. Wright, 97 Ga. 123, 25 S.E. 249, 35 L.R.A. 497. In Davis v. Macon, 64 Ga. 128, 37 Am.Rep. 60, the ordinance contained this provision: "Each person or firm (farmers selling their own produce excepted) retailing fresh or butcher's meat in the city, whether from stalls, stores, or by peddling the same on the streets, shall pay a license of $50.00." Its validity was attacked because it exempted from its operation farmers selling their own produce, but the ordinance was held to be valid against this objection, because the farmer, in the sale of his produce, which was only occasional and incidental to his calling, was not engaged in a separate and distinct business which was taxed by the ordinance. It cannot be disputed that any attempt by a state to discriminate in its tax laws in favor of the property of its own citizens against the property of citizens of other states would be obnoxious to ...