Nance v. Harrison

• Decision Date: 02 March 1933
• Docket Number: 9123.
• Parties: NANCE et al. v. HARRISON, Comptroller General.
• Court: Georgia Supreme Court

169 S.E. 22

176 Ga. 674

NANCE et al. v. HARRISON, Comptroller General.

No. 9123.

Supreme Court of Georgia

March 2, 1933

Syllabus by the Court.

Act taxing motor carriers held not violative of due process, equal protection, and tax uniformity clauses because exempting carriers of agricultural, dairy, and horticultural products (Laws 1931 [Ex. Sess.] p. 63, as amended by Laws 1931, p. 90; Laws 1931 [Ex. Sess.] p. 63, § 2(G), as re-enacted by Laws 1931, p. 91, § 2; Const. U.S. Amend. 14; Const. Ga. art. 1, § 1, par. 3; art. 7, § 2, par. 1).

1. The evidence did not show that the plaintiffs, who conducted the business of a motor carrier for hire, were exempt from the operation of the motor-carriers tax act of March 31, 1931 (Laws 1931 [Ex. Sess.] p. 63), by reason of confining their operations principally to incorporated towns and cities. Moreover, the provision which provided for the exemption claimed by the plaintiffs was repealed by the Act of August 28, 1931 (Laws 1931, p. 90).

2. The contention that the Act of March 31, 1931, is invalid because of alleged discrimination in favor of the class referred to in the preceding note must necessarily fail in view of the fact that the provision alleged to embrace the unwarranted classification has been repealed. Even if there had been no repeal of the provision under consideration, it could not be said that the classification was made without reason, nor therefore, that the allowance of the exemption stated operated to deprive the plaintiffs of the equal protection of the laws, or otherwise rendered the act unconstitutional for any reason assigned.

3. The Act of March 31, 1931, as amended by the act of August 28 1931, levying a tax upon motor carriers in general, does not by exempting motor carriers of agricultural, dairy, and horticultural products, deny the equal protection of the laws to a motor carrier for hire who is not engaged in the transportation of such products. The act does not violate any constitutional provision, either state or federal, as invoked by the plaintiffs.

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

Suit for injunction by C. W. Nance and others, doing business in the name of Nance Transfer Company, against William B Harrison, Comptroller General of Georgia. Injunction was refused, and plaintiffs bring error.

Affirmed.

A. Walton Nall, Norman De Krasner, and J. Ira Harrelson, all of Atlanta, for plaintiffs in error.

Lawrence S. Camp, Atty. Gen., and T. R. Gress and W. K. Meadow, Asst. Attys. Gen., for defendant in error.

BELL Justice.

C. W. Nance and others, doing business in the name of Nance Transfer Company, filed a suit in equity to enjoin William B. Harrison, Comptroller General of Georgia, from enforcing the provisions of the Act of the General Assembly approved March 31, 1931, known as the motor carriers tax act. Ga. Laws Ex. Sess. 1931, p. 63. After hearing evidence, the trial judge refused an injunction, and the plaintiffs excepted. The main purpose of the act referred to, as indicated by its caption, was "to raise revenue by levying taxes on those who pursue the business of operating motor vehicles on the public highways of this state for the carrying of passengers or property, or both, for hire; to make exceptions and exemptions; [and] to provide for the collection and enforcement of the tax." In section 1 the term "motor carrier" is defined to mean all persons, firms, associations, or corporations engaged in the business of transporting for hire by motor vehicle persons or property, or both, on the public highways of this state, whether as common carriers or not. In section 2 taxes are levied upon common carriers of passengers and of goods, and also upon carriers of passengers and of goods for hire other than common carriers. In paragraph G of section 2 it is provided that "the tax laid herein shall not apply to motor-vehicles engaged exclusively in the transportation of agricultural and/or dairy products and horticultural [products] between any of the following points: farm, market, gin, warehouse, or mill, where the weight of the load does not exceed 15,000 pounds, whether such vehicle is owned by the owner or producer or not." In paragraph H (3) of section 2 it is declared that the tax shall not apply "to taxicabs or trucks of baggage and/or transfer companies which are operated principally within incorporated cities or towns, but which may, in the prosecution of their regular business, occasionally go beyond the limits of the city or town in which they operate, and which do not operate between such city or town and fixed termini outside such city or town limits, including trucks of baggage and/or transfer companies which do not operate outside of cities and towns more than once a week." In the petition it is alleged that the plaintiffs are ordinary private draymen owning a very limited number of vehicles and operating principally within the city of Gainesville; and that while they go occasionally beyond the limits of the city, they have no fixed termini outside such city or town limits, and do not regularly go beyond such town or city limits. The first contention made in the petition is that the plaintiffs are exempt from liability under the provision last quoted. It is alleged that the Comptroller General through his officers and agents is attempting to force the plaintiffs to pay the tax as provided by the statute, notwithstanding they are expressly exempted from liability thereunder. The second contention is that, if the plaintiffs are not entitled to the exemption claimed, the entire act is unconstitutional and void, because, in undertaking to exempt carriers operating chiefly within cities and towns, it violates the due process and equal protection clauses of both the state and federal Constitutions (Const. Ga. art. 1, § 1, par. 3; Const. U.S. Amend. 14), and the tax uniformity clause of the state Constitution (Const. Ga. art. 7, § 2, par. 1). The third contention is that the provision contained in paragraph G of section 2, as quoted above, allows an arbitrary and unreasonable discrimination in favor of carriers of farm, dairy, and horticultural products as therein specified, as against the plaintiffs, who are engaged in the hauling of other products such as dry goods, hardware, furniture, groceries, and other useful commodities, and chattels. In this attack upon the statute the same constitutional provisions are again involved.

1. The judge was authorized to find against the contention that the plaintiffs were exempt under the provisions of paragraph H(3) of section 2, as to carriers operating principally within the limits of incorporated towns and cities. The evidence did not demand the inference that the motor carrier business conducted by the plaintiffs fell within the class made exempt by this subsection. Moreover, the paragraph last referred to was repealed by the Act of August 28, 1931, and in lieu thereof a new paragraph was inserted. Ga. Laws 1931, pp. 90, 93, § 6. The plaintiffs do not claim exemption under the new classification.

2. The contention that the Act of March 31, 1931, is invalid because of the alleged discrimination in favor of the class referred to in the preceding division must necessarily fail, in view of the fact that the provision alleged to embrace the unwarranted classification has been repealed. Even if there had been no repeal of the provision under consideration, it could not be said that the classification was made without reason, nor, therefore, that the allowance of the exemption stated operated to deprive the plaintiffs of the equal protection of the laws, or otherwise rendered the act unconstitutional for any reason assigned. Bekins Van Lines v. Riley, 280 U.S. 80, 50 S.Ct. 64, 74 L.Ed. 178; Northern Transportation Co. v. Railroad Commission, 196 Wis. 410, 220 N.W. 390.

3. Passing to the third and last contention, we notice again that the Act of March 31, 1931, has been amended in a matter relating to the basis of the attack upon its constitutionality. The plaintiffs have assailed the statute upon the ground that in paragraph G of section 2 there is an arbitrary and unreasonable discrimination in favor of carriers of agricultural, dairy, and horticultural products. No mention is made of the Act of August 28, 1931, in which the section relating to these subjects was also repealed and a new section substituted therefor (Laws 1931, p. 91, § 2), as follows: "The tax laid herein shall not apply to motor-vehicles engaged exclusively in the transportation of agricultural, dairy, and/or horticultural products from the farm to the market, or gin, or warehouse, or mill, where the combined weight of the vehicles and load does not exceed 20,000 pounds, and from market or other points and places mentioned in this sentence to farm."

But, to give the plaintiffs the benefit of the law as it now exists and to treat the petition as attacking the amended statute because of the exemption contained in the amendment, it is our opinion that the act is not unconstitutional for any reason asserted in the petition. The statute under review is a revenue or tax-raising measure. See Carley v. Snook, 281 U.S. 66, 50 S.Ct. 204, 74 L.Ed. 704, 68 A.L.R. 194. The fact that such a statute discriminates in favor of a certain class does not make it arbitrary, if the discrimination is founded upon a reasonable distinction. As was said in Brown-Forman Co. v. Kentucky, 217 U.S. 573, 30 S.Ct. 578, 580, 54 L.Ed. 883: "A very wide discretion must be conceded to the legislative power of the state in the classification of trades, callings, businesses, or occupations which may be subjected to special forms of regulation or taxation through an excise or license tax. If the selection or classification is...