Kenny v. Harwell
| Decision Date | 31 January 1871 |
| Citation | 42 Ga. 416 |
| Parties | M. E. KENNY et al., plaintiffs in error. v. J. M. HARWELL, Tax Collector, defendant in error. M. MEYER, et al., plaintiffs in error. v. J. J. McGOWAN, Tax Collector, defendant in error.* |
| Court | Georgia Supreme Court |
Constitutional Law. Taxation. Before Judges Parrott and Schley. From Fulton and Chatham counties. July and August, 1870.
Kenny et al., of Fulton county, and Meyer et al., of Chatham county, filed bills against the respective tax collectors of said counties, averring that the complainants were respectively merchants in the cities of Atlanta and Savannah, and that they had frequently (since the 1st day of January, A. D., 1870,) sold brandy, gin and whisky in quantities less *than thirty gallons; that the said defendants, as tax collectors of the said counties, had called upon the complainants, respectively, to make returns of all liquors sold by them since the 1st day of January, A. D., 1870, and up to the 1st day of April, 1870, in quantities less than thirty gallons, and were about to issue executions against each of the complainants for the sum of $1,000 00, for his failure to make such returns, and threatened to continue to require them to make such returns on the 1st days of July, October and January thereafter, and to issue similar executions upon their failure to make such returns.
The bills further alleged that the said tax collectors were proceeding under the "8th paragraph of the 2d section of an Act, approved March 18, 1869, " and entitled "An Act to levy and collect a tax for the support of the government, for the year 1869, and other purposes, " which said paragraph was as follows: And the complainants insisted *that the tax collector could not proceed under this clause of the said Act.
The prayer of the bills was for the writ of injunction to restrain the tax collectors from proceeding, as alleged, to collect the tax specified, and for general relief.
The argument on bill from Fulton was before Judge Parrott, and on the one from Chatham, before Judge Schley. Both bills were dismissed, on demurrer, for want of equity. And this is assigned as error. They were argued here separately, but the Court consolidated them in believing the opinion.
Hulsey & Tignor, for Kenny et al. R. E. Lester, for Myer et al. The 8th paragraph of section 2, of Act of 1869 (quoted above) is unconstitutional: 27th section of Bill of Rights, 1868; Constitution 1868, Article VI., sec. 3d. Equity can restrain these tax collectors: R. Code, sees. 3026, 3027, 667, 3040, 3045; 27th Ga. R., 354. Power totax is power to destroy: 4th Wheat. R., 316. Congress may regulate commerce: 7th Howard R., 283; Law Times, 197. Constitution subordinate to Bill of Rights: 11th Ark. R., 484; 13th, 267; 11th Mo. R., 13; 2d Yerger R., 605; 3 Humph. R., 483; 11th Mass. R., 396; Livingston v. The City of Albany, 41st Ga. R., 21. The Act of 1869, in said quoted section, contains matter different from its title: Constitution 1868; 5th Par., sec. 4. The $1,000 00 is a penalty.
J. D. Pope, for tax collectors.
Section 27, Article I., of the Constitution of 1868, is as follows: Article III., section 5, paragraph 1, is as follows: "The General Assembly shall have power to make all laws and ordinances, consistent with this Constitution and not repugnant to the Constitution of the United States, which they shall deem necessary and proper for the welfare of the State." Article VI., section 2d, after devoting to the purposes of common schools, the poll tax and certain other funds, proceeds to devote to that purpose "a special' tax on shows and exhibitions, and on the sale of spirituous and malt liquors, which the General Assembly is hereby authorized to assess."
The Legislature of 1869, in its General Tax Act, after taxing property generally undertook to assess the tax provided for in Article VI., section 2d, by laying, for purposes of education, a tax of twenty cents per gallon upon the sale of whisky, brandy, etc., in quantities less than thirty gallons. It is contended that this tax is a tax upon property, and that, as it taxes the sale of these liquors twenty cents upon each gallon sold, without regard to its value, it is not ad valorem and uniform, as required by Section 27, Article I., of the Constitution.
Is this a tax upon property? This Court, in the case of The City of Albany, at the last term, held that a tax laid by the City of Albany, of fifty cents upon every mule sold in the city by drovers, was a void tax, because it was a tax upon property, and not ad valorem; and, though upon reflection, I greatly doubt whether that decision was right, upon the ground on which it was put, I am not disposed to disturb it. If the tax in that case was a tax upon property, it was, in my judgment, void, not only because it was not ad valorem, but because it was not uniform upon all species of property taxed. It selected a certain kind of property, and taxed that differently from other property, and hence the tax, whether specific or ad valorem, was not a uniform tax on all species of property taxed. The opinion expressed in that case, that the *city might tax the sale of mules ad valorem, was not a point in the case before the Court, nor properly involved in the decision of it.
That a tax upon the sale of an article is a tax upon the article, as property, is, however, decided by that case, and whether rightly or wrongly, this Court is, under section 204 of the Code, required to adhere to it, until it is overruled in the manner there prescribed. I do not, therefore, put my judgment in this case on the ground that this is not a tax upon property.
For the purposes of the argument, it may be admitted that this is a tax upon property, and that it is neither ad valorem nor uniform—that is, it is not laid according to the value of the thing taxed, and that the tax is a tax not laid upon other property. It is, in my judgment, nevertheless, strictly a constitutional tax. The power to lay it is derived from Article VI., section 2d, of 'the Constitution. It is an express power, and the Act conforms to the very terms of the grant. That section devotes to the common school fund "a special tax on shows, exhibitions, etc., and the sale of spirituous and malt liquors— which the General Assembly is hereby authorized to assess."
In my judgment, it was the particular intent of this clause of the Constitution, to authorize a tax which should not conform to the requirements of Section 27 of Article I—that is, to authorize a tax upon these particular things which should not be ad valorem and should not be uniform with the tax the Legislature might lay upon other property.
I can see no other motive for this special grant to the Legislature of a power to lay a' tax on the sale of spirituous liquors. I cannot escape the thought, that this authority was here given because it was supposed that if such a grant was not inserted, some other portion of the Constitution would make the tax here devoted to education illegal.
It must be remembered that the taxing power in the General Assembly is no where expressly granted, except in this *clause. The taxing power, the Legislature has, under its general power, to do all things consistent with the Constitution. Why was it supposed necessary to insert in Article VI., section 2, an authority to lay a special tax upon the sale of spirituous liquors? In my judgment it was but for one reason: Such a tax would not be ad valorem, and would be a violation of the principle asserted in Article I, section 27th, as to uniformity. It authorized a tax upon a particular kind of property, and authorized that tax to be a special one. It was, therefore, thought necessary to give the General Assembly in terms, the power to assess it.
To say that the tax to be assessed under Article VI., section 2d must conform to the provisions of Article I, section 27, is to make the grant of power in Article VI., section 2d wholly unnecessary, as the General Assembly would have the power without this special grant. The taxing power, so far as the mode of its exercise is concerned, is unlimited, except as itis limited in Article I., section 27th; and if the power granted in Article VI., section 2d is only to be exercised as limited in Article I., section 27th, then the grant in Article VI., section 2d is wholly useless. The words are surplusage—they grant a power which existed without them. I do not so understand the Constitution. Article VI., section 2d was intended to...
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Bohler v. Error
...Act approved February 20th, 1873: See Acts 1873, p. 64. This Act is constitutional: See Constitution of 1868, Art. VI. sec. 3; Kenny et al. v. Harwell, 42 Ga. 416. The Judge granted the injunction because the tax was neither ad valorem nor uniform. This special tax authorized by Article VI.......