O'Neal v. Whitley

• Decision Date: 10 August 1933
• Docket Number: 9415.
• Citation: 170 S.E. 376,177 Ga. 491
• Parties: O'NEAL, Mayor, et al. v. WHITLEY.
• Court: Georgia Supreme Court

170 S.E. 376

177 Ga. 491

O'NEAL, Mayor, et al. v. WHITLEY.

No. 9415.

Supreme Court of Georgia

August 10, 1933

Syllabus by the Court.

Machinery of paving contractor, operating statewide business from single office in La Grange, held subject to taxation by La Grange under charter provision authorizing ad valorem tax on personal property within corporate limits, although machinery was moved from place to place throughout state and was not situated within La Grange (Laws 1901, p. 486, § 25; Civ. Code 1910, § 4, par. 9).

The charter of the city of La Grange authorized the mayor and council to provide by ordinance for the assessment and collection of an ad valorem tax "on real and personal property within the corporate limits of said city, which is subject to be taxed by the State." Where an owner of property having his legal residence and domicile in such municipality was engaged in the business of a paving contractor, and conducted such business in different parts of the state from only one office and place of business which was located in the city of La Grange, and in connection with such business owned and operated machinery and equipment which was never actually situated within the limits of that city but was kept and used in other parts of the state and was subject to removal at any time according to the exigencies of the owner's business, the situs of such property for taxation was at the residence and domicile of the owner in the city of La Grange. Under the provisions of the charter the property was subject to ad valorem taxation by the city, and it was error to enjoin an assessment for that purpose.

Error from Superior Court, Troup County; L. B. Wyatt, Judge.

Suit for injunction by J. E. Whitley against R. S. O'Neal Mayor of the City of La Grange, and others. Judgment for plaintiff, and defendants bring error.

Reversed.

J. T Thomasson and Lovejoy & Mayer, all of La Grange, for plaintiffs in error.

L. M Wyatt and M. U. Mooty, both of La Grange, for defendant in error.

BELL Justice.

J. E Whitley, a resident of the city of La Grange, made to the municipal authorities a return of property for taxation for the year 1932. He omitted from his return certain tangible personal property which was not actually situated within the limits of the municipality. The city authorities caused this property to be assessed and added to his return. Whitley brought a suit against the mayor and council to enjoin the assessment. The defendants filed an answer, and the case was submitted to the trial judge upon an agreed statement of facts. An injunction was granted, and the mayor and council excepted. The agreed statement was as follows:

"1. J. E. Whitley resides in and has his legal domicile in La Grange, Troup County, Georgia. J. E. Whitley does business under the trade-name of the Whitley Construction Company, and as such is engaged in the business of a paving contractor, paving streets in cities and highways. The said J. E. Whitley and Whitley Construction Company have only one office and place of business, which office and place of business is located in the City of La Grange, Troup County, Georgia.

"2. J. E. Whitley, trading as Whitley Construction Company, on January 1, 1932, and at all times thereafter, owned certain road building and paving equipment consisting of paving machinery, concrete mixers, pumps, trucks, and other machinery used in the business of a paving contractor, which equipment was of the value of at least $25,000.

"3. On January 1, 1932, none of this equipment was in the City of La Grange, nor has any of said equipment ever been in the City of La Grange. On January 1, 1932 part of this equipment was located in Bulloch County, part in Stewart County, and part of it in Pulaski County.

"4. This equipment is moved from place to place, wherever the said Whitley might have use for it in carrying on the business of a paving contractor, and the equipment is left in such city or county where it has been used, after the completion of the contract, either for the paving of a highway or a city street, until such time as another contract is obtained and said equipment is needed, when said equipment is then moved from such place to a location where it is needed for use in fulfilling another paving contract. That none of said equipment is kept permanently in any one place.

"5. J. E. Whitley has never returned said equipment or any part thereof, for taxes in any municipality in Georgia, nor has he paid any taxes on any of this equipment in any other municipality. This equipment has not been in any municipality during the year 1932.

"6. J. E. Whitley returns equipment for State and county taxes in Troup County, Georgia, and did return equipment for taxes in said county for the year 1932."

A municipal corporation can levy no tax, general or special, upon its inhabitants, or upon the property therein, unless the power to do so has been plainly and unmistakably conferred by the state. Southern Express Co. v. Rose Co., 124 Ga. 581 (3), 588, 53 S.E. 185, 5 L.R.A. (N. S.) 619; Lane v. Mayor, etc., of Unadilla, 154 Ga. 577, 114 S.E. 636. The charter of the city of La Grange provides that the mayor and council "shall have full power and authority, and shall provide by ordinance, for the assessment and collection of an ad valorem tax on real and personal property within the corporate limits of said city, which is subject to be taxed by the State." Ga. Laws 1901, pp. 477, 486, § 25. In view of the authority as thus expressly granted to the city of La Grange, the question here does not concern the power to tax, but instead has to do with the subject-matter upon which the power may be exercised. What is the meaning of the words, "personal property within the corporate limits of said city?" This is the sole question for determination, and is purely a matter of construction. It is the general rule that tax laws must be strictly construed against the government and in favor of the citizen (Georgia Paper Stock Co. v. State Tax Board, 174 Ga. 816, 819, 164 S.E. 197); but the cardinal rule is to ascertain the intention of the General Assembly in passing the legislation. Civil Code 1910, § 4, par. 9. It appears from the agreed statement that Whitley, the citizen, had his legal residence and domicile in the city of La Grange, and that he was engaged in the business of a paving contractor. In the conduct of this business he had only one office and place of business, which was located in the same municipality.

In connection with such business he owned and operated certain machinery and equipment which was never actually situated within the city of La Grange, but was moved from place to place throughout the state of Georgia, wherever the owner might have use for it in carrying on the business of a paving contractor. The property has no definite and permanent location in any one place, but is at all times subject to removal according to the exigencies of the owner's business as conducted from his office in the city of La Grange. Was it the intention of the Legislature to authorize the mayor and council of this municipality to lay a tax upon tangible personal property under these circumstances?

As pointed out by Mr. Justice Lamar in County of Walton v County of Morgan, 120 Ga. 548, 48 S.E. 243, 247, it was the general policy of this state prior to 1868 that the situs of all property for taxation, whether real or personal, was determined by the residence of the owner, and that in the absence of statute personal property "is to be taxed where the owner resides." With the exception of a statute relating to railroad companies (Civ. Code 1910, § 872), there has been no general legislation upon this subject affecting municipalities. The decisions in Greene County v. Wright, 126 Ga. 504, 54 S.E. 951, and Fulton County v. Wright, 146 Ga. 447, 91 S.E. 487, depended largely upon the statute relating to railroads, and, with the exception of some general statements, these decisions do not shed any considerable light upon the present controversy, although each of them recognized the general rule that the situs of personal property for taxing purposes is at the residence of the owner. This rule is subject to exceptions and modifications; as, for instance, where the property is actually situated...