Inter-city Coach Lines Inc v. Harrison

• Decision Date: 28 February 1931
• Docket Number: No. 7807.,7807.
• Citation: 157 S.E. 673,172 Ga. 390
• Parties: INTER-CITY COACH LINES, Inc. v. HARRISON, Comptroller General, et al.
• Court: Georgia Supreme Court

172 Ga. 390

157 S.E. 673

INTER-CITY COACH LINES, Inc.

v.HARRISON, Comptroller General, et al.

No. 7807.

Supreme Court of Georgia.

Feb. 28, 1931.

Syllabus by the Court.

Paragraph 114 of the amendment to the General Tax Act of 1927 (Acts 1929, pp. 58, 74) is not inoperative because it fails to define the auto transportation companies, associations, and individuals upon whom the tax levied by that section is imposed.

Syllabus by the Court.

The act approved August 29, 1929, amending the General Tax Act of 1927, is not unconstitutional because it contains matter different from what is expressed in its caption.

Syllabus by the Court.

The portion of the above amendment to the General Tax Act of 1927 which imposes a mileage occupation tax upon the operators of busses for the transportation of passengers or property, or both, over the public highways of this state for hire, has not been superseded by the Motor-

Carrier Act of 1929 (Acts 1929, p. 293), which imposes upon such operators a fee or tax for certificates of public convenience and necessity, and a fee or tax for the registration and license of the motor-busses of such operators.

(a) There is a clear distinction between a license granted or required and the payment of a tax therefor as a condition precedent before a certain occupation or business can be carried on, and a tax assessed on the occupation or business in which the license may authorize one to engage. Where a license is required as a condition precedent before a business or occupation can be carried on, and the fee or tax is required in payment of such license, the tax imposed is a license tax, and not one upon occupation. A tax assessed on the occupation or business in which such license authorizes one to engage is an occupation tax.

(b) A fee or tax imposed by the Motor-Carrier Act for the granting by the Public-Service Commission of a certificate of public convenience and necessity, and the fee imposed for the registration and license to operate each bus engaged in this business, are essentially license taxes, the act expressly denominating the latter a license tax; and these fees or taxes are not occupation taxes.

[Ed. Note.—For other definitions of "License Tax" and "Occupation Tax, " see Words and Phrases.]

Syllabus by the Court.

The tax imposed by the above amendment to the General Tax Act of 1927 is not a toll, and is not prohibited by the act of Congress of November 9, 1921, which declares that "All highways constructed or reconstructed under the provisions of this chapter [on highways] shall be free from tolls of all kinds" (23 USCA § 9).

[Ed. Note.—For other definitions of "Toll, " see Words and Phrases.]

Syllabus by the Court.

Section 19 of the Motor-Carrier Act of 1929 (Acts 1929, p. 301) does not prohibit the imposition of a tax upon motorcarriers engaged as common carriers in the transportation of passengers or property, or both, for hire over the highways of this state. This section only prohibits any other license, that is, any operating tax other than that imposed by this act upon auto carriers so engaged; but it does not prohibit an occupation tax on the business of such transportation.

Syllabus by the Court.

"The municipality of 'Atlanta, ' " created by the act of August 17, 1929 (Acts 1929, p. 835 et seq.), is not a city or town within the meaning of the terms "cities or towns, " as used in that portion of the Motor-Carrier Act of 1929 (Acts 1929, p. 293), which expressly declares that it does not include and does not apply to "motor-vehicles operated exclusively within the incorporated limits of cities or towns" of this state. It follows that the Motor-Carrier Act does not exempt motorbusses, operating as common carriers, both in the cities and unincorporated communities embraced within the territorial limits of the municipality created by the act of August 17, 1929, from the occupation tax imposed by the above amendment to the general tax act of 1927, from the fees or taxes imposed by the Motor-Carrier Act for certificates of public convenience and necessity and for the registration or license of busses engaged in such business, from supervision by the Public Service Commission of this state, and from the necessity of obtaining certificates of public convenience and necessity in order to operate on the public highways of this state between fixed termini.

[Ed. Note.—For other definitions of "Municipality, " see Words and Phrases.]

Syllabus by the Court.

Applying the above principles, the trial judge did not err in refusing to grant the injunction prayed.

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Suit by the Inter-City Coach Lines, Inc., against W. B. Harrison, Comptroller General, and others. Judgment for defendants, and plaintiff brings error.

Affirmed.

Carl N. Davie, J. F. Kemp, and Lawrence S. Camp, all of Atlanta, for plaintiff in error.

Geo. M. Napier, Atty. Gen., T. R, Gress, Asst. Atty. Gen., and Robt. B. Troutman and Robt. S. Sams, both of Atlanta, and J. P. Wilholt, of Warrenton, for defendants in error.

HINES, J.

Prior to June 7, 1929, the Inter-City Coach Lines, Inc., operated motorbusses between the city of Atlanta and the city of Fairburn, and since said date has continuously operated busses from Atlanta to College Park, and since that date has maintained, and is maintaining, by the operation of one bus, an hourly schedule between College Park and Fair-burn. By an amendment to the General Tax Act of 1927 (p. 56), which amendment was approved August 29, 1929, it is provided that: "There shall be collected by the Comptroller-General from every auto transportation company, association, or individual, as defined hereinafter, to which has been granted a certificate of public convenience and necessity, which it or they are hereby required to obtain from the Public Service Commission of this State, permitting him, it, or them to engage in the transportation of passengers or freight, or both, between fixed termini, an occupation tax on a mileage basis of one quarter (¼) cent per mile on all busses with a capacity of 10 passengers or less, and a mileage tax of one half (½) cent per mile on all busses with a capacity of not more than 20 passengers nor less than 10 passengers, and a mileage tax of three quarters (¾) cent per mile on all busses with a capacity of more than 20 passengers; * * * coming within the terms of this Act, for every mile traveled by the motor-vehicles of such auto transportation company, association, or individual, over the public highways of this State." The amending act then provides the method by which said tax shall be collected. Acts 1929. pp. 58, 74.

In 1929 the General Assembly passed the Motor-Carrier act of that year. Acts 1929, pp. 293, 302. By its terms this act became operative October 1, 1929. Section 4(a) of this act provides that, after it goes into effect, no motor carrier shall operate without first obtaining from the Public Service Commission a certificate of public convenience and necessity; and section 16 provides that a fee of $35 shall be charged for the issuance by the commission of every such certificate. Section 17 provides that every motor carrier shall, as soon as a certificate is issued, and annually on or before each succeeding January 1, aslong as such certificate remains in force, make application to the commission for registration and license of the motor vehicles to be operated under such certificate, and, upon the payment of a fee of $25 for each vehicle to the comptroller general, shall be entitled to register the same and receive a license therefor. Section 19 declares that: "No county, municipal, or other political subdivision of this State shall impose any regulation, license, or operating fee or tax of any kind on any motor carrier licensed under this Act; and this shall be the only license or operating tax imposed upon any motor carrier by this State." By section 2 of this act it is expressly declared that it shall not apply to "motor-vehicles operated exclusively within the incorporated limits of cities or towns."

The act of Congress of November 9, 1921, declares that all highways constructed or reconstructed under its provisions shall be free from tolls of all kinds. USCA, title 23, § 9. The highway over which this company operates its lines of busses is a federal aid highway. The Inter-City Coach Lines, Inc., paid the tax imposed by the above amendment to the general tax act of 1927 from the date thereof until October 1, 1929, when the Motor-Carrier Act went into effect. This company likewise made application to the Public Service Commission for a certificate of public convenience and necessity, in order to operate its bus business as above set out, received such certificate, and paid the taxes and license fees required under the latter act. The comptroller general, in January, 1930, made a demand upon this company for the payment of the mileage tax imposed by the amendment to the General Tax Act of 1927, and threatened to issue execution and enforce the collection of the same against it, unless payment was received by February 1, 1930. This company filed its petition against the comptroller general and the Georgia Public Service Commission in which it sought to enjoin the former from enforcing, or attempting to enforce, the tax imposed by the above amendment to the General Tax Act of 1927, except the tax due on the line which operates between the limits of the city of College Park and Fairburn, and to enjoin the Public Service Commission from enforcing, or attempting to enforce, its rules and regulations as to the operation of the motorbus lines of plaintiff, except between the above limits. The judge declined to grant an interlocutory injunction; and to this judgment this company excepted.

1. Plaintiff insists that the above amendment to the General Tax Act of 1927 is inoperative, as it undertakes to impose the tax therein provided upon "every auto transportation company,...