Graves v. City Of Gainesville
| Decision Date | 03 December 1948 |
| Docket Number | Nos. 32128, 32129.,s. 32128, 32129. |
| Citation | 51 S.E.2d. 58 |
| Parties | GRAVES. v. CITY OF GAINESVILLE. SMITH. v. CITY OF GAINESVILLE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where a photographer who resides in another state and has his photographic studio and principal place of business in such other State with no fixed place of business in this State, sends an agent into a municipality of this State to solicit orders for photographs and sends a cameraman into the same municipality to take exposures of sittings and poses of customers solicited by the other agent, each of whom receive the sum of 50 cents from each of such customers for said services, which entitles each of said customers to one picture, the scheme or plan of the transaction being to send the negatives of several sittings and poses to the photographer in the foreign state from which proofs are developed and returned to the municipality of this State by another agent of the photographer, such customers then being afforded the opportunity of ordering any number of pictures from such proofs besides the one for which such customers have paid the sum of $1, and such proofs are again sent to the studio of the photographer where the pictures are completed according to order and mailed COD to the customers, such transaction is interstate commerce.
An ordinance of a municipality of this State fixing an occupational tax of $15 per year on a resident photographer and $10 per day upon an itinerant photographer is so discriminatory as to place an undue burden upon the interstate commerce referred to herein and is in violation of Art. 1, Sec. 8, cl. 3, of the Constitution of the United States. The fact that the ordinance further provides that such itinerant photog-grapher, before canvassing for customers in the municipality, shall register himself with the police department, giving his name, permanent address, the name and permanent address of the company he represents, and shall allow himself to be fingerprinted for identification purposes, is not such reasonable police regulation and exercise of police power of the municipality as to harmonize the ordinance as applied to the occupations and business transactions herein outlined with this Constitutional provision.
Error from Superior Court, Hall County; Boyd Sloan, Judge.
L. D. Graves and C. B. Smith were convicted in Recorder's Court of violating an ordinance of the City of Gainesvilleproviding for the licensing of photographers, and to review judgments of the Superior Court overruling writs of certiorari, they bring error.
Reversed.
The plaintiffs in error, L. D. Graves and C. B. Smith, Jr., hereinafter referred to as the defendants were served with copies of charges on the 6th day of March, 1948, accusing each of them with the offense of engaging in the business of itinerant photographers without having procured a license therefor as required by Section 5, Item 141 B of an ordinance of the defendant in error, the City of Gainesville, hereinafter referred to as the plaintiff.
Section 5 of the ordinance in question is as follows:
The item constituting 1/10 of 1 percent or $15 is the fixed license tax for one year as is the item of $50 under (a). However the item following (b) of $10, sought to be applied to the defendants herein is the fixed license tax per day on itinerant photographers.
The defendants filed a plea in abatement assigning numbers of grounds for the al leged invalidity of that portion of the city ordinance sought to be applied to them. Among these grounds is one wherein the defendants contend that the part of the ordinance sought to be enforced against them is void and violative of the Interstate Commerce Clause of the Constitution of the United States as contained in Art. 1, Sec. 8, cl. 3, as follows: "The Congress shall have Power * * * To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
The defendants further contend in their said pleas in abatement that the tax of $10 per day, sought to be imposed upon them as itinerant photographers, is void as being an arbitrary discrimination between an itinerant photographer engaged in interstate commerce and a local resident photographer, and by its terms seeks to prevent such business in interstate commerce from competing with such business of the resident photographer.
These pleas in abatement were submitted to the trial court on an agreed statement of facts substantially as follows: that at the time the copies of charges were served upon the defendants they were engaged in the City of Gainesville as agents of Olan Mills Inc.; that each of the defendants are residents and citizens of the State of Alabama; that Olan Mills Inc. is a corporation of the State of Tenn. with its office and principal place of business, including its photographic studios in Tuscaloosa, Alabama; that defendant L. D. Graves, as agent of said corporation solicited and sold an order of one 8" x 10" finished unmounted photograph to Mr. and Mrs. Arnold Bennett for which the said L. D. Graves collected the sum of 50 cents which he retained as his commission for obtaining said order; that the defendant C. B. Smith, as agent of said corporation and while located in a room at the Princeton Hotel in said city, as camera operator took some exposures of some sittings and poses of the said Mr. and Mrs. Bennett, they having been sent to the defendant Smith by the defendant Graves; that at this time the defendant Smith collected the sum of 50 cents from Mr. and Mrs. Bennett as his compensation for the transaction; that in the regular mannerof transacting the business of Olan Mills Inc. the exposed negatives of the sittings and poses of Mr. and Mrs. Bennett would then be mailed to the studios of the corporation at Tuscaloosa, Ala. and proofs thereof manufactured; that thereupon these proofs would be brought to Gainesville by another agent of the corporation and exhibited to customers; that one picture of the customer's choice would then be finished and delivered to the customer by mail for the $1.00 paid previously to the corporation's agents, the defendants Graves and Smith; that at the time the custom or was. exercising the choice of sittings and poses from the proofs exhibited by the third agent of the corporation, the customer would have the opportunity to order any number of photographs in which case the order would be sent to the corporation and photographs processed and finished and then mailed to the customer COD for any balance due; that the corporation reserved the right to accept or reject any order sold by its agent and the customer had the right to refuse to purchase or order any further finished photographs; that the Bennett transaction went according to this plan as far as it got; that the plan herein outlined applied to any and all customers of the corporation in Gainesville; that the part played by the defendants herein in the Bennett...
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