Warren v. Suttles

Citation9 S.E.2d 172,190 Ga. 311
Decision Date20 May 1940
Docket Number13134.
PartiesWARREN v. SUTTLES, Tax Collector.
CourtSupreme Court of Georgia

Syllabus by the Court.

1. The repeal by the General Assembly of the act of 1937, which had expressly repealed paragraph 8 of section 2 of the general tax act of 1935, prescribing a tax on athletic exhibitions, and had further provided for a different tax thereon, did not operate to revive and reinstate paragraph 8 of section 2 of the act of 1935.

2. Where the tax collector had notified the plaintiff that he would not be permitted to stage a boxing exhibition which he had scheduled unless the tax was paid, and the plaintiff filed a petition seeking an injunction against such threatened action and the collection of the tax, the judge upon the hearing should have granted an injunction against the collection of the tax, even though it appeared that the boxing exhibition, under the protection of a temporary restraining order, had been held.

3. The fact that the State Revenue Commissioner is given concurrent jurisdiction to collect such taxes, and he was not made a party to the suit, presented no obstacle to the grant of the injunction.

Virlyn B. Moore, Jr., of Atlanta, for plaintiff in error.

Spalding Sibley, Troutman & Brock, E. H. Sheats, W. S. Northcutt and Standish Thompson, all of Atlanta, Ellis G. Arnall, Atty Gen., Broaddus Zellars, Asst. Atty. Gen., and Claude Shaw, of Atlanta, for defendant in error.

REID Chief Justice.

1. The General Assembly in the general tax act of 1935 (Ga.L. 1935, pp. 11, 12, sec. 2, par. 8) levied, among others, the following tax: 'Upon every athletic club, and upon every association or person giving boxing or sparring or wrestling exhibitions where an admission of not exceeding $1.00 is charged, $50.00 for each exhibition; where admission charged is $1.00 to $1.50, $100.00; and where the admission charged is $1.50 and over, $200.00 for each exhibition. That the tax herein provided for shall be paid to the Tax Collector of the county before opening the doors for any of said exhibitions.' Code, § 92-607. Thereafter the General Assembly by the act of 1937 (Ga.L. 1937, p. 405) created a State Athletic Commission. The caption of this act was as follows: 'An act to regulate boxing, sparring, and wrestling exhibitions in Georgia; to create a State Athletic Commission; prescribing its powers and duties; providing for licenses and permits for those conducting matches and exhibitions, the contestants and referees; limitations on number of licensed matches and when and where exhibitions are to be held; physical examination of contestants; excepting amateur matches and those held by schools and colleges; naming offenses by contestants; providing penalties for violation of the provisions thereof; providing compensation and expenses of the Commission; providing for tax on gross receipts of matches and exhibitions authorized; disposition of receipts and fees; authorizing municipal commissions to continue; repealing sections of an Act therein named; and for other purposes.' Section 18 of this act, so far as material here, provided: 'Every person who may conduct any match or exhibition under this Act, shall, within 24 hours after the determination thereof, furnish to the Commission by mail, or to an authorized representative or inspector of the Commission, a written report duly verified by such person, or one of its officers, showing the number of tickets sold for such contest and the amount of the gross receipts thereof, and such other matters as the Commission may prescribe, and shall also within the said time pay to the State Athletic Commission a tax of 10% of the total gross receipts from the sale of tickets of admission and passes to such match or exhibition.' In section 24 of this act, paragraph 8 of section 2 of the general tax act of 1935 (Code, § 92-607), quoted above, was expressly repealed. Finally in 1939 the General Assembly passed an act (Ga.L. 1939, p. 241) repealing the act of 1937 creating the State Athletic Commission in its entirety.

The exact question presented in this case is whether the act of 1939 repealing the act of 1937, which created the State Athletic Commission and repealed paragraph 8 of section 2 of the act of 1935, operated to revive and reinstate paragraph 8 of section 2 of the act of 1935, so that a person holding a boxing exhibition after the passage of the act of 1939 would be liable for the tax specified therein. The tax collector of Fulton County, taking the affirmative view of this problem, notified the plaintiff, L. C. Warren, by letter on September 8, 1939, that he would be required to pay a tax of $200 as prescribed in the act of 1935 before he could stage a certain boxing match which he had scheduled for September 11. The plaintiff denied the existence of the tax, and applied to the superior court for injunction restraining the tax collector 'from collecting the tax referred to * * * for the next exhibition to be promoted by this plaintiff, and * * * from collecting or attempting to collect or from closing the doors of plaintiff's exhibition, and from issuing fi. fa. against this plaintiff.' On interlocutory hearing the restraining order was dissolved, and an injunction was denied. The plaintiff excepted.

1. It was a general rule of statutory construction at the common law that when a repealing statute is itself repealed, the first statute is revived, without formal words for that purpose. 25 R.C.L. 184. This principle was stated in the early case of Harrison v. Walker, 1 Ga. 32. A typical case for the application of the principle is where the General Assembly passes an act merely repealing a former act, and thereafter repeals the repealing act. The basic logic of the rule is that the General Assembly in repealing the repealing act must necessarily intend that the original act be thereby revived and reinstated, since the original repealing act itself had no other effect than to abrogate the original enactment. 'The rule itself rests upon the theory that each expression of the legislative mind represents the legislative intent at the time of that expression, and that the repealing statute indicates a change of the legislative purpose as expressed in the prior law and, therefore, when the repealing statute is in turn repealed, without any reference to the pre-existing law, the presumption is that the legislature intended by the repeal to restore the order of things existing under the repealed statute.' Butner v. Boifeuillet, 100 Ga. 743, 28 S.E. 464, 466. The rule does not, in our opinion, fit the facts of the present case; and we must adopt the negative view of the question propounded, that is, that by the repeal of the act of 1937 paragraph 8 of section 2 of the act of 1935, which was expressly repealed by the act of 193...

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    ...Lumber Co. v. Winslett, 168 Ga. 808, 809, 149 S.E. 211; State of Georgia v. Camp, 189 Ga. 209, 210, 6 S.E.2d 299; Warren v. Suttles, 190 Ga. 311, 314, 9 S.E.2d 172; Forrester v. Interstate Hosiery Mills, 194 Ga. 863, 867, 23 S.E.2d 78; Thompson v. Eastern Air Lines, Inc., 200 Ga. 216, 224, ......
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    ...probationers in 1991, the legislature intended to revive common law tolling only as to these probationers. See Warren v. Suttles, 190 Ga. 311, 313–314, 9 S.E.2d 172 (1940).We have held that the repeal of a statutory provision codifying the common law "without more" leaves the common law app......
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