Publix-Lucas Theaters v. City of Brunswick

• Decision Date: 11 October 1949
• Docket Number: 16816.
• Citation: 56 S.E.2d 254,206 Ga. 206
• Parties: PUBLIX-LUCAS THEATERS, Inc. et al. v. CITY OF BRUNSWICK.
• Court: Georgia Supreme Court

56 S.E.2d 254

206 Ga. 206

PUBLIX-LUCAS THEATERS, Inc. et al. v. CITY OF BRUNSWICK.

No. 16816.

Supreme Court of Georgia

October 11, 1949

Rehearing Denied Nov. 18, 1949.

Syllabus by the Court.

1. Under the allegations of the petition as to one of the plaintiffs, this is a proper case for relief under the Declaratory Judgment Act.

2. The ordinance in question in the instant case is invalid, and the trial judge erred in denying an injunction and dismissing the petition.

Publix-Lucas Theaters Inc. and E. H. Diemmer, trading as Starlight Theater, filed their petition naming the City of Brunswick as defendant. It was alleged that on February 16, 1949, the City of Brunswick enacted a certain ordinance, providing 'Section 1. All persons, firms, or corporations hereinafter named conducting in the City of Brunswick any form of exhibition for the entertainment or amusement of the public where a charge is made for admission, in addition to all other license or taxes levied in and by this ordinance or other ordinances of said City now in force, or hereafter levied, shall pay as an occupational tax the following percentage upon the amount of the sale of tickets, cards, tokens, passes or any other forms of admission of their businesses, exhibitions, performances, circuses, carnivals, concerts, lectures, games, matches, or dances. (a) Motion picture houses or theaters, or motion picture exhibitions with a fixed place of doing business, and doing business from month to month, five (5%) per cent of the purchase price of any tickets, cards, tokens, passes or any other forms of admission sold; any ticket, card, token, pass, or other form of admission selling from one (1¢) cent to twenty (20¢) cents, inclusive, a minimum tax of one (1¢) cent per ticket or other form of admission charge; any ticket, card, token, pass or any other form of admission selling from twenty-one (21¢) cents to forty (40¢) cents, inclusive, a minimum tax of two (2¢) cents per ticket or other form of admission charge; any ticket, card, token, pass or any other form of admission selling from forty-one (41¢) cents to sixty (60¢) cents, inclusive, a minimum tax of three (3¢) cents per ticket or other form of admission charge; any ticket, card, token, pass, or any other form of admission selling from sixty-one (61¢) cents to eighty (80¢) cents, inclusive, a minimum tax of four (4¢) cents per ticket or other form of admission charge; any ticket, card, token, pass or any other form of admission, selling from eighty-one (81¢) cents to one ($1.00) dollar, inclusive, a minimum tax of five (5¢) cents per ticket or other form of admission charge; any ticket, card, token, pass or any other form of admission selling from one dollar and one ($1.01) cent and over, a minimum per ticket or other form of admission, computed on the same basis on each fraction of one dollar as provided hereinabove added to the minimum of five (5¢) cents; payable in twelve (12) monthly installments. Such tax shall be paid on the 1st day of each and every month upon every ticket, card, token, pass or any other form of admission sold for the preceding month. Payment of such tax shall be accompanied by a sworn statement from the manager, proprietor or agent of the taxpayer showing the number of tickets, cards, tokens, passes or any other forms of admission sold for each day of the preceding month for each place of business and amount severally charged therefor.'

The petition further alleged that the City of Brunswick has notified the petitioners of its intention to enforce said ordinance, beginning March 1, 1949, by prosecuting the petitioners, their servants, agents, and employees, in the Recorder's Court in the event the tax is not paid. The ordinance is attacked for the reasons, it is contended: that a license or occupation tax to be levied by the charter of the City of Brunswick is limited to $1000 from any person, firm, or corporation; that Publix- Theaters Inc. has already paid the City of Brunswick $500 as the license or occupation tax for 1949, and E. H. Diemmer, who has not yet finished the construction of his 'Drive-in-Theater,' will be required to pay and intends to pay as soon as he begins operation the regular license or occupation tax required by the City of Brunswick prior to the ordinance of February 16, 1949; that the said ordinance would require Publix-Lucas Theaters Inc. to pay an additional license or occupation tax of more than $3000, and would require E. H. Diemmer to pay an additional sum of more than $1000; further, that the City of Brunswick is limited by its charter to a levy of 1-1/2% upon a 'fair valuation of the property taxed,' whereas the ordinance under attack seeks to levy a tax of 5% to 10% upon gross receipts; that the ordinance seeks to levy a tax upon gross receipts, whereas the charter only authorizes a tax upon profits or net income, and 'section one of said ordinance approved February 16, 1949, is illegal, null, and void because the tax sought to be levied therein exceeds the authority conferred upon the City of Brunswick under its charter to levy license or occupation taxes;' and that said ordinance violates the provisions of paragraph 3, section 1, article 7 of the Constitution of the State of Georgia, in that the tax is not uniform.

The petition seeks relief under the Declaratory Judgment Act of 1945, Laws 1945, p. 137, and prays that the defendant be temporarily and permanently enjoined from enforcing the ordinance under attack.

After hearing evidence, the trial judge dissolved a temporary restraining order previously granted, denied the relief sought, and dismissed the petition. The exception is to this judgment.

Gowen, Conyers & Dickey, Brunswick, for plaintiff in error.

B. N. Nightingale, Brunswick, for defendant in error.

WYATT Justice.

1. Insofar as Publix-Lucas Theaters Inc. is concerned, this is not a proper case for resort to the Declaratory Judgment Act, Laws 1945, p. 137, for the reason it has a full and complete remedy without regard to this act. See Mayor and Council of Athens v. Gerdine, 202 Ga. 197, 42 S.E.2d 567, and cases cited.

As to E. H. Diemmer, since he has not started the operation of his business and has paid no license or tax, and prays for a construction of the ordinance before beginning business, the case does properly fall under the Declaratory Judgment Act, and for that reason this court decides the entire case.

2. The tax in question is sought to be levied under the provisions of Ga.L. 1872, p. 151, and the provisions of Ga.L. 1876, p. 159.

Section 12 of the act of 1872, supra, reads as follows: 'The said mayor and council shall have the authority and power to levy and collect a tax upon all taxable property within the limits of said city, upon real and personal property, stocks in money, corporations, choses in action, incomes and commissions derived from the pursuit of any profession, faculty, trade or calling, upon dividends, banks, insurance, express and other like companies or their agencies, and upon all other sources of profit, not expressly prohibited or exempt by the laws of the State, thus to raise such sum of money as may be necessary for the safety, convenience, benefit and interest of said city, the maintaining the municipal government and the payment of the debts thereof: Provided, Said rate of taxation shall not exceed three per cent. upon a fair valuation of the property taxed.' Section 20 of said act reads as follows: 'That the said mayor and council shall have the authority and power to regulate and control the conduct of peddlers and itinerant traders within the limits of said city, by taxation or otherwise, and also to tax theatrical performances, exhibitions and shows of any kind whatever, in said city, except such peddlers, traders and shows as are exempt from taxation under the laws of this State.'

The provisions of Ga.L. 1876, supra, here pertinent are as follows: 'Section I. Be it enacted, etc., That from and after the passage of this Act, the 12th section of the 'Act to consolidate and amend the several Acts incorporating the city of Brunswick,' approved August 27, A.D., 1872, be so amended that the same shall read: 'Provided, the rate of taxation shall not exceed one and one-half of one per centum upon a fair valuation of the property taxed.'

'Sec. II. Be it further enacted, That the Mayor and Council shall have power and authority to require all persons, firms, companies and corporations, whether they reside within the corporate limits of said city or not, engaged or about to engage in any business, calling, trade or profession, within said corporate limits, to register their names and business, trade, calling or profession in the office of the Clerk of Council, at such times and under such regulations as the Mayor and Council may prescribe.

'Sec. III. Be it further enacted, That all bankers, brokers and commission merchants be required to pay for their business license, during each year, a sum not exceeding three hundred dollars.'

'Sec. VI. Be it further enacted, that all other persons, firms, companies and corporations be required to pay for their registration and license a sum not exceeding two hundred dollars.'

If there is authority for the levy of the tax in question, it must be found in the above-quoted portions of the charter of the City of Brunswick. Approaching this question, certain well-settled principles of law should be kept in mind.

"Statutes which impose restrictions upon trade or common occupations, and which levy an excise or tax upon them, must be construed strictly.' 'Statutes levying duties or taxes upon subjects or citizens are to be construed...