City of Hawkinsville v. Wilson & Wilson, Inc., 27872
| Decision Date | 20 September 1973 |
| Docket Number | No. 27872,27872 |
| Citation | 200 S.E.2d 262,231 Ga. 110 |
| Court | Georgia Supreme Court |
| Parties | CITY OF HAWKINSVILLE et al. v. WILSON & WILSON, INC. |
Walter E. Baker, Jr., Hawkinsville, for appellants.
Charles Marchman, Jr., Macon, for appellee.
Syllabus Opinion by the Court
This is an appeal from the grant of a mandamus absolute. The commissioners and city clerk of Hawkinsville were ordered by the trial court, after a hearing, to issue to the appellee a business or license tax certificate upon payment of the required tax due the city under its ordinance. From this judgment and other ancillary rulling, certified for review, the city and other defendants have appealed to this court. Held:
1. The City of Hawkinsville ordinance in question states in pertinent parts that it assesses a tax against all persons, firms or corporations engaging in any business, trade, calling or profession in the city, and provides procedures and penalties to require compliance with registration under the ordinance and payment of the prescribed tax. Section XIII provides: 'Upon the payment of the taxes assessed hereby, it shall be the duty of the clerk of the City of Hawkinsville to issue to each person, firm, or corporation, a business tax certificate . . ..' The ordinance contains no provision to regulate the various businesses except to collect a tax for their operation within the city. Thus, the ordinance is properly characterized as a tax ordinance since its functional design was to produce revenue rather than to regulate these businesses under the police power of the city. See Pharr Road Investment Co. v. City of Atlanta, 224 Ga. 752(1), 164 S.E.2d 803 (1968).
2. The action taken by the commissioners of the city authorizing the issuance of the business or license tax certificate to the appellee only upon its compliance with certain specified conditions, in addition to payment of the tax provided by the ordinance, exceeded the lawful authority of the board of commissioners of the city. The appellee's business was a garage business which had been operated in a residential neighborhood but had caused some complaints to the city authorities and they sought to handle these through regulation of the location and hours of the appellee's continued business operation. As observed by counsel for the appellants in his brief, 'the ordinance fixes the license tax only and sets no standards or conditions for issuance.' The trial court correctly ruled that The only condition precedent to the issuance of the business or license tax certificate here was payment of the specified tax. Upon its payment, a duty arose, under the plain provisions of the ordinance, for the issuance by the city clerk of the certificate and no discretion was reserved by the city commissioners to interfere with the clerk's duty to issue the certificate. The cases of the City of Marietta v. Howard, 208 Ga. 719, 69 S.E.2d 246 (1952), and Eason v. Dowdy, 219 Ga. 555, 134 S.E.2d 788 (1964), cited by appellants in their brief are not applicable to the facts of this case. Cp. City of Decatur et al. v. Fountain, 214 Ga. 225, 104 S.E.2d 117 (1958), and McWhorter v. Settle, 202 Ga. 334, 43 S.E.2d 247 (1947) cited in the briefs of both sides, for the applicable rules of law regarding the mandamus relief sought in this case. The City of Hawkinsville has authority under its charter both to tax businesses and to regulate them. However, as observed by the trial court in its well reasoned opinion on the issues in this case: ...
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