Dixie-Ohio Exp. Co. v. State Revenue Commission
| Decision Date | 17 June 1938 |
| Docket Number | 12230. |
| Citation | 197 S.E. 887,186 Ga. 228 |
| Parties | DIXIE-OHIO EXP. CO. v. STATE REVENUE COMMISSION et al. |
| Court | Georgia Supreme Court |
Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.
Proceeding by the State Revenue Commission of Georgia and others against the Dixie-Ohio Express Company to collect the amount of a license fee or maintenance tax allegedly due by the defendant under the Maintenance Tax Act. To review an adverse judgment, the defendant brings error.
Affirmed.
Syllabus by the Court.
1. The maintenance-tax act of 1937 (Ga.L.1937, pp. 155-167) is not void on the ground that it violates the equal-protection clause, or the due-process clause as embodied in article 1 section 1, pars. 2, 3, of the constitution of this State. Code, §§ 2-102, 2-103.
2. Neither is said act violative of the commerce clause as embodied in article 1, section 8, paragraph 3, of the constitution of the United States, U.S. C.A.Const. art. 1, § 8, cl. 3. Code, § 1-125.
3. Nor is said act violative of section 1 of the 14th amendment of the constitution of the United States, U.S. C.A.Const. Amend 14, § 1, inhibiting the passage of laws abridging the privileges or immunities of citizens. Code, § 1-815.
The State Revenue Commission of Georgia issued a fi. fa. against Dixie-Ohio Express Company and caused the same to be levied by a sheriff of Fulton County on property of the company. The fi. fa. was issued for the amount of a license fee or a maintenance tax alleged to be due by the Dixie-Ohio Express Company, under the maintenance-tax act of 1937, for a truck operated by that company over certain highways of Georgia. After levy the defendant in fi. fa., filed with the sheriff an affidavit of illegality, and gave bond for the eventual condemnation money. A general demurrer to this affidavit was filed by the State Revenue Commission, and after hearing the court sustained the demurrer and dismissed the affidavit. To this ruling the defendant excepted. The affidavit of illegality alleges that the levy is proceeding illegally against the defendant in fi. fa. because the 1937 maintenance-tax act which authorized the tax is unconstitutional, in that it violates the provisions of both the State and Federal constitutions.
Briefly stated, the affidavit contains the following allegations: The Express Company is an Ohio corporation with its principal office and place of business in that State. It is engaged in the business of transporting property by motor vehicle as a common carrier for hire between the States of Ohio, Pennsylvania, New York, Kentucky, Tennessee, Alabama, and Georgia. It is engaged entirely in interstate commerce, and does no intrastate commerce whatever. It hauled commodities generally from places and points in Ohio to places in Georgia, and picked up freight in Georgia destined for the States north of Georgia. In operating over the highways of Georgia its trucks did not travel over any of the rural post roads of Georgia, as defined in the act of March 18, 1937, Laws 1937, p. 912, with respect to rural post roads; its trucks operated only over State-aid highways, mostly from Tennessee-Alabama line near Chattanooga to Atlanta; a permit issued to it by the Interstate Commerce Commission limited its operations over these highways; and under the Federal motorcarrier act of 1935, 49 U.S. C.A. § 301 et seq., it could not operate over the rural post roads of Georgia. It owned approximately one hundred pieces of equipment, consisting of one and a half ton and two ton straight trucks, and one and one-half ton and two-ton tractors which were used to pull trailers weighing approximately 4,000 pounds; it purchased a $3 license tag for each truck, and a $25 Georgia public service tag for each truck, and purchased for each of its drivers a $2 chauffeur's license; and in addition to these taxes, it paid a tax of 6 cents per gallon for each gallon of gas purchased in the State of Georgia, and its purchases amounted to approximately 90,000 gallons of gas per year. The maintenance-tax act provides a tax of $50 on trucks of a manufacturer's rated capacity of one and one half tons, $75 for a manufacturer's rated capacity of two tons in the event that the trucks are operated as carriers for hire; and in the event they are operated as carriers not for hire, the corresponding fees would be $15 for a truck of a rated capacity of one and one half tons and $30 for a truck of a rated capacity of two tons.
It was further alleged that trailers are required to pay a fee graduated according to their empty factory weight, as set out in the maintenance-tax act of 1937; that the manufacturer's rated capacity and empty factory weight had no relationship to the actual weight of the vehicle and no relationship with respect to the use such vehicle would make of the highways of Georgia, because a truck of a rated capacity of one ton may weigh far in excess of a truck of a rated capacity of two or three tons, for rated capacity differs greatly from loaded capacity; that a combination of a tractor and trailer would pay a far greater fee than would a straight truck of approximately the same weight, even though the truck and trailer unit would cause less wear and tear on the highway than would the straight truck with a concentration of weight; that there was no relationship between the use made of the highway by these trucks and the tax levied, because there was a discrimination against carriers for hire in favor of carriers not for hire, for the fees of the latter are much less than the fees required of the former; that there were 69,503 carriers operating over the highways of Georgia as carriers not for hire, and only 2,943 trucks operated as carriers for hire; that the taxes already paid by the motor-vehicle industry more than paid the cost of maintaining and constructing the highways of the State over which the defendant in fi. fa. operates; that the State collected $1,305,999.71 from the sale of the $3 tags, of which $1,209,495.05 was allocated to the State Highway Fund for State-aid roads, and the remainder was used for regulation purposes; that the Georgia Public Service Commission collected $73,565 for registration fees, of which $28,341.12 was paid to the highway fund for State-aid roads, the remainder of which was used for regulation purposes; that the State collected $17,525,616.25 from gasoline tax; that for the same year the State of Georgia spent only $11,127,258.38 for highway construction, and of the sum expended the Federal Government contributed $3,721,489.90. Further, that only eleven per cent. of the entire mileage traveled by the defendant in fi. fa. is traveled within the boundaries of the State of Georgia, and the State collected far more than eleven per cent. of the total taxes paid by it to all of the other six states through which it operates; and that if it were required to pay the same amount of taxes in the other States, it would be unable to operate at a profit.
The Dixie-Ohio Express Company contends that the affidavit of illegality contained sufficient allegations to show that the levy of the fi. fa. was proceeding illegally, in that the tax sought to be collected was not due by the defendant in fi. fa., because the maintenance-tax act of 1937, under which the fi. fa. was issued, was void and unconstitutional; and therefore that the court erred in dismissing the affidavit. The legal questions presented are in the affidavit of illegality, and all the grounds of the affidavit are insisted on. These in summary are whether: (1) The maintenance-tax act of 1937, as applied to the plaintiff in error, is void in that it violates article 1, section 1, paragraphs 2 and 3, of the constitution of Georgia. (2) The tax is void in that it violates article 1, section 8, paragraph 3, of the constitution of the United States, U.S. C.A.Const. art. 1, § 8, cl. 3. (3) The tax is void in that it violates section 1 of the fourteenth amendment to the constitution of the United States, U.S. C.A.Const. Amend. 14, § 1.
Watkins, Grant & Watkins and Allan Watkins, all of Atlanta, for plaintiff in error.
M. J. Yeomans, Atty. Gen., and O. H. Dukes, W. H. Duckworth, and Dave M. Parker, Assts. Atty. Gen., for defendants in error.
The affidavit of illegality attacks as unconstitutional the motor-bus maintenancetax act approved March 30, 1937 (Ga.Laws 1937, pp. 155-167). The act in question, by section 1 provides that all persons, firms, corporations or associations holding title to a motorbus, truck or trailer, or having exclusive right to the use thereof for a period of more than thirty days shall pay a maintenance tax for the operation of such motor bus, truck or trailer upon and over the public roads of this State according to the schedule provided by the terms of the act. The maintenance tax is to be levied in addition to any and all other taxes, licenses, or registrations fees required under existing laws. The terms of the act definitely identify the license or fee prescribed as a charge for the privilege of using the highways of the State. The entire amount of the tax collected under the provisions of the act is allocated for the construction and maintenance of public highways, to wit, post roads. No provision is made to deduct any part thereof for the expense of collection or for any regulatory purpose. By section 2 of the act are given certain definitions of the scope of the act's operation, and in section 3 the schedule of license fees to be exacted is set out. There are three classifications provided by this section: One is the license fee for the operation of passenger-carrying motor-buses; another is the fee applicable to and exacted from persons operating non-passenger-carrying motor vehicles or trucks not used as common...
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