Standard Oil Co v. Swanson

• Decision Date: 10 December 1904
• Citation: 121 Ga. 412,49 S.E. 262
• Court: Georgia Supreme Court
• Parties: STANDARD OIL CO. v. SWANSON.

49 S.E. 262

121 Ga. 412

STANDARD OIL CO.

v.SWANSON.

Supreme Court of Georgia.

Dec. 10, 1904.

HAWKERS AND PEDDLERS — LICENSES — WHEN REQUIRED—OIL IN BULK.

1. Paragraph 8 of section 2 of the general tax act of 1902 (Acts 1902, p. 21), imposing a special tax upon traveling venders "of patent or proprietary medicines, special nostrums, jewelry, paper, soap, or other merchandise, " does not embrace venders of merchandise not ejusdem generis with the articles expressly enumerated.

2. Oil handled in bulk and sold in quantity is not ejusdem generis with the articles expressly enumerated in the above-mentioned statute, and that statute does not embrace traveling venders of such oil.

(Syllabus by the Court.)

Error from Superior Court, Gordon County; A. W. Fite, Judge.

Action by the Standard Oil Company against S. E. Swanson. Judgment for defendant, and plaintiff brings error. Reversed.

King, Spalding & Little, for plaintiff in error.

Sam. P. Maddox, Sol. Gen., for defendant in error.

SIMMONS, C. J. Suit was brought by the Standard Oil Company against S. E. Swan-son for the recovery of about $50 alleged to have been illegally collected by him as tax collector of Gordon county. From the pleadings and the evidence it appeared that the plaintiff was a corporation duly organized under the laws of the state of Ohio and doing business in Georgia; that it was engaged in the manufacture and sale of oils and oil products; and that in pursuance of this business it had an agent, a storage warehouse, and a place of doing business in Whitfield county. Oil received in tank cars was pumped into the plaintiff's storage tanks in Whitfield county, and taken from these tanks into a tank wagon. This wagon was driven through the county of Gordon, as well as Whitfield, and the oil delivered to merchants. In some instances orders are previously sent in; in others not. Upon the arrival of the wagon at a store, such quantities of oil were sold, delivered, and paid for as the merchant might desire. The defendant, as tax collector of Gordon county, issued against plaintiff an execution for taxes under paragraph 8 of section 2 of the general tax act of 1902 (Acts 1902, p. 21). Under protest, and in order to prevent the sale of certain of its property levied upon under this execution by the sheriff of the county of Whitfield, the plaintiff paid the amount of the execution. For the recovery of the amount so paid the present suit was brought On the trial it was admitted that the plaintiff had paid its ad valorem tax on its plant and property in the county of Whitfield, and that no special tax or peddler's tax or other license had been demanded of it in that county. The case was submitted to the judge without the intervention of a jury, and he found for the defendant, holding that the plaintiff was subject to the tax imposed, and that the execution was legal. To this judgment plaintiff excepted.

Counsel expressly refrained in the present case from raising any question as to whether the collection of this tax would be an unlawful interference with interstate commerce, or as to whether the execution should have been issued against plaintiff or against its agent in charge of its wagon. The sole question is whether such a business as is shown by the record to have been carried on by plaintiff in the county of Gordon was taxable under the above-cited provisions of the act of 1902. The tax was imposed under the following provision of that act: "That in addition to the ad valorem tax on real estate and personal property as required by the Constitution and provided for in the preceding section, the following specific taxes shall be levied and collected for each of said fiscal years: * * * Upon every traveling vender of patent or proprietary medicines, special nostrums, jewelry, paper, soap or other merchandise, fifty dollars in each county where they may offer such articles for sale." Whether plaintiff's agent was, under Pol. Code 1895, § 1640 et seq., subject...