Landham v. City Of La Grange
| Decision Date | 15 January 1927 |
| Docket Number | (No. 5480.) |
| Citation | 163 Ga. 570,136 S.E. 514 |
| Parties | LANDHAM et al. v. CITY OF LA GRANGE et al. |
| Court | Georgia Supreme Court |
(Syllabus by the Court.)
No attack is made on the ordinance on the ground that it interferes with interstate commerce, and no ruling is made upon that question.
Error from Superior Court, Troup County; C. E. Roop, Judge.
Suit by E. C. Landham and another against the City of La Grange and others. Judgment for defendants, and plaintiffs bring error.
Affirmed.
E. C. Landham and J. D. Anderson brought a petition against the city of La Grange et al., for injunction and other relief, and alleged, in substance, the following: E. C. Landham is engaged in business in the city of Anniston, Ala., as proprietor and owner, and Anderson is an employee of Landham in the capacity of salesman. The articles of merchandise sold by plaintiffs are floor coverings, draperies, and house furnishings, all of which are sold by retail. The main base of operation of the business is the store of Landham at 28 West Eleventh street, Anniston, Ala. Anderson, while not engaged in the Alabama territory, operates as a salesman for Landham in Troup county, Ga. About every two weeks Anderson loads a truck with merchandise in Anniston, Ala., drives the truck to Troup county, and in that county makes a house-to-house canvass, taking orders for the sale of goods, and making deliveries at the time of taking orders, at which time he takes a partial payment for the goods delivered, and a contract from the purchaser for subsequent payments. The business conducted by Anderson is subject to the special license tar as set out in section 88 of the General Tax Act of the Extraordinary Session of the General Assembly of 1923 (page 47). The special tax has been paid by Anderson to conduct the business in Troup county for the year 1926. On December 18, 1925, the city council of La Grange passed an ordinance imposing a special tax upon peddlers peddling on the streets, from house to house, merchandise or articles of any description, except argicultural products, $200. The ordinance also provides a tax of $50 for furniture dealers operating in the city of La Grange. It is the purpose of the city authorities to enforce the penalties set forth in paragraph 9 against plaintiffs, and apply the penalties of paragraph 10 as to local merchants residing in the city of La Grange. The entire gross sales of plaintiffs in the city of La Grange will approximate $110 a month, which, after deducting the expenses of doing business and the cost of the goods, would leave Landham a profit of approximately $150 a year. The tax sought to be enforced against Landham will amount to more than the profits of the business. The ordinance referred to seeks to place an occupation tax on merchants having a place of business in La Grange, in the sumof $50, and an occupation tax on itinerant dealers not having a place of business in La Grange of $200. The marshal of La Grange has served Anderson with a summons to appear before the recorder's court of the city, to be tried for doing business in violation of the ordinance in question, and has notified both of plaintiffs that it will be necessary that the tax of $200 be paid before they can proceed to do business in La Grange. The ordinance is void, in that it imposes a tax of more than 30 per cent. on the net profits of the business of Landham; and in that it seeks to discriminate in the imposition of a specific occupation tax as between resident and nonresident merchants doing the same class of business. The municipal authorities are threatening and intend to enforce the tax against the plaintiffs, and such enforcement will render the orderly conduct of the business impossible. The ordinance is void in so far as it seeks to operate against the plaintiffs, in that it seeks to destroy, and will destroy if enforced, the rights of plaintiff's to engage in business in La Grange on an equal footing with the citizens thereof. The enforcement of the $200 penalty as provided by the ordinance will invade the private rights of plaintiffs granted to them under the state laws, which have been complied with. The ordinance is unreasonable in amount, and therefore void. It is unreasonable and discriminatory as applied to nonresidents. It is confiscatory and prohibitive, and seeks to create a monopoly for like dealers in the city of La Grange, as against outside competition. It was intended to lessen competition of La Grange merchants, and its enforcement will have this effect. It is void as being in violation of section 531 of the Civil Code 1910, which provides that a peddler's license shall extend to the limits of the county. Plaintiffs have no adequate remedy at law, and are forced to resort to a court of equity. They prayed that the defendants be enjoined from enforcing the ordinance against plaintiffs; that the occupation tax of $200 be declared null and void as against them. At the interlocutory hearing the plaintiffs introduced a special tax receipt showing that J. D. Anderson had paid to the tax collector of Troup county $50 for the privilege of peddling for the year 1926 in Troup county. The defendants introduced the affidavits of C. A. Parker, Walter Cogdell, J. L. Hollingsworth, Sig Owen, J. C. Hunter, Joe Spikes, and J. D. Arlington, residents of La Grange, and some of whom deposed that they were engaged in the same line of business as that of plaintiffs, and were familiar with the wholesale and retail prices thereof, and on the usual profits made on this line of business they estimated that the plaintiffs should make a net profit per year of from $2,500 to $4,000. The trial judge refused an injunction, and the plaintiffs excepted.
M. U. Mooty, of La Grange, for plaintiffs in error.
L. B. Wyatt, of La Grange, for defendants in error.
HILL, J. (after stating the facts as above). The plaintiffs brought a petition against the city of La Grange to enjoin the collection of a certain license or business tax against peddlers, peddling on the streets of the city of La Grange, from house to house, merchandise or articles of any description, for the year 1926, of $200 per annum. The petition alleges that the plaintiffs had paid the special tax of $50 under the General Tax Act passed at the Extraordinary Session of the General Assembly of 1923. The petition, which was sworn to, alleged that plaintiffs did make a house-to-house canvass in Troup county, taking orders for the sale of goods, and making deliveries at the time of taking the orders, at which time partial payment for the goods thus delivered were paid, etc. Thus it will appear that plaintiffs were peddlers within the meaning of the ordinance passed by the city of La Grange, imposing a tax of $200 on peddlers within the city. The ordinance is attacked on various grounds which are set out in the foregoing statement of facts;' among others, that it is excessive, unreasonable, discriminatory, and confiscatory, and therefore void. The case was submitted to the trial judge at the interlocutory hearing on the sworn petition for the plaintiffs, and affidavits introduced by the defendants from numerous residents of La Grange, who testified that they were familiar with the kind of business in which the plaintiffs were engaged, and that from their knowledge of the business they should make a net profit from such business of from $2,-500 to $4,000 a year. After hearing this evidence, the trial judge refused to grant the injunction prayed for.
The burden of proving an ordinance unreasonable is on the party attacking it. Ray v. Tallapoosa, 142 Ga. 799, 800 (3), 83 S. E. 938. We are of the opinion that the plaintiffs failed to carry the burden placed upon them by the rule laid down above. The petition, which was sworn to, alleged that, after deducting the expenses of doing business and the cost of the goods, Landham would have a profit of approximately $150 a year. Opposed to this is the testimony of the witness above referred to, who placed the profits of the plaintiffs in error at from $2,500 to $4,000 per year. So we cannot say, under this evidence which the trial judge had before him when he refused to grant the injunction, that the special tax was so excessive as to render the ordinance void for that reason. Nor can we say that it was discriminatory, because any merchant of La Grange who might peddle from house to house within the city would be subject to the same special tax. No question is raised in the record that the city...
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