Davis & Co. v. The Mayor

• Decision Date: 30 September 1879
• Citation: 64 Ga. 128
• Parties: Davis & Company. v. The Mayor and Council of Macon.
• Court: Georgia Supreme Court

64 Ga. 128

Davis & Company. v. The Mayor and Council of Macon.

Supreme Court of the State of Georgia

(September Term, 1879.)

Injunction. Municipal corporations. Tax. Constitutional law. License. Before Judge Simmons. Bibb County. At Chambers. September 16, 1879.

Reported in the opinion.

John L Hardeman, for plaintiffs in error.

*W. B. Hill, for defendants.

BLECKLEY, Justice.

In July, 1879, the city corporation of Macon issued a fi. fa. against H. G. Davis & Co. for fifty dollars, "it being license city tax for retailing fresh and butcher's meats in the city, and peddling the same on the streets, for the year 1879." Also a fi. fa. for twenty-five dollars, "it being license city tax for running a one-horse wagon for the year 1879." Both these fi. fas. were levied by the city marshal upon certain personal property of Davis & Co. An ordinance of the city, passed June 12th, 1879, declared that the various amounts specified therein should be levied and collected as license and business taxes for the year 1879; among the numerous specifications in the ordinance were the following: "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..., "For each and every wagon used by butchers and bakers in their business, and wagons used by brewers and manufacturers of soda water, or for the delivery of oil, milk or any other article (except wagons delivering milk from dairies on country farms), and package delivery wagons, where such wagons are used for hauling in the city, and drawn by one horse, shall pay $25.00.

By charter, the city of Macon has power to tax property, real and personal, within the city, at a rate not exceeding (for all purposes) one and a half per cent. ad valorem, and also "power to levy and collect a tax upon all persons exercising within the city any profession, trade or calling, or business of any nature whatever." Acts of 1871-2, pp. 120, 121. The constitution of 1877 (art. vii, section 2) declares "all taxation shall be uniform upon the same class of subjects, and ad valorem on all property subject to be taxed, within the territorial limits of the authority \'levying the tax, and shall be levied and collected under general laws.

.. The general assembly may, by law, exempt from taxation (certain specified property). No poll-tax shall be levied except for educational purposes, and such tax shall not exceed one dollar annually, upon each poll, All laws exempting property from taxation, other than the property herein enumerated, shall be void." The Code, in section 1605, provides that "No municipal corporation of this state shall levy or assess a tax on cotton or the sales thereof, nor shall any such corporation levy or assess a tax on any agricultural products raised in this state, or the sales thereof (other than cotton), until after the expiration of three months from the time of their introduction into said operations.

On the first of August, 1879, H. G. Davis & Co. filed their bill against the corporation of Macon, praying for an injunc-tion against the collection of the two executions above described, and that said corporation and its officers be restrained from proceeding further at law touching the matters in question. At the hearing of the order to show cause, the injunction was refused, and that is the alleged error.

The charges of the bill make the following case: The complainants do not reside within the corporate limits of the city; they carry on the business of butchers, but have no slaughter-pen, stall or place of business within the city; their slaughter-pen is about one mile outside of the city limits, and their shop is in Vineville; a few of their regular city customers reside in the city of Macon, and the complainants deliver to these, at their doors, fresh meats, using for this purpose a one-horse wagon, which wagon is the property of complainants; that for such delivery they charge nothing, nor are they paid anything; that they do not retail fresh or butcher's meat in the city from a stall or store, nor peddle the same upon the streets; and that the cattle they slaughter are raised in Georgia, not bought in the city, but bought from farmers in Bibb and adjacent *counties, brought to the complainants' pens outside of the city limits, and there slaughtered, and the interval between the purchase of the cattle and the sale of the meats is never longer than two weeks; and the city has no public market. The bill proceeds to allege that the executions were issued and levied; complains that the levies were excessive, etc., and then attacks the validity of the ordinance for the following reasons: That the tax is not uniform upon the class taxed; that the city has no authority to license delivery wagons of non-residents used for their own purposes; that the city has no authority to tax agricultural products raised in Georgia, or the sale thereof, until after the expiration of three months from their introduction into the city; that by exempting farmers selling their own produce, the ordinance fails in uniformity; that complainants have paid all state and county taxes due on their property; that the city does the greater part of the work on the streets with the Bibb county chain-gang, to the support of which the city does not contribute. The bill also makes the point that the complainants are not within the provisions of the ordinance, because they are non-residents of the city, have no place of business within it, and do not retail meats within it from stalls or stores, or by peddling on the streets.

1. The power of the city to impose the so-called license tax is denied. But the authority to levy and collect a tax upon all persons exercising within the city any profession, trade or calling or business of any nature whatever, is expressly granted by the charter. This power is surely broad enough to reach the complainants if they carry on, within the city, the business of retailing fresh or butcher's meat. Why not? 59 Ga., 188; 60 Ib., 133.

The ordinance is further attacked as invalid because it has an exception in it exempting from its operation farmers selling their own produce. The exception would probably have been implied had it not been expressed, for the tax imposed is abusiness tax, a tax on avocation or calling. The business of a farmer is production, not trade, and the *sale directly by himself of what he rears or produces is merely occasional or incidental. No doubt very considerable restrictions might be imposed upon farmers as to the manner of conducting their trade; but while the public authority can restrict them in that respect, it is not obliged to do so as a condition of taxing other persons on their business or avocations. We need not and will not say that for the purpose of upholding a general meat-market, or a system of meat-markets, in a city, farmers could not be prohibited...