Wright v. Hirsch
| Decision Date | 02 March 1923 |
| Docket Number | 3136. |
| Citation | 116 S.E. 795,155 Ga. 229 |
| Parties | WRIGHT, COMPTROLLER GENERAL, ET AL. v. HIRSCH ET AL. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
An act of the Legislature should not be declared unconstitutional and set aside by the courts in a doubtful case. The repugnancy between the statute and the Constitution must be clear and palpable.
Paragraphs 40 and 41 of section 2 of the General Tax Act of 1921 (Acts 1921, p. 38) do not violate article 7, § 2, par. 1, of the Constitution of this state, which is as follows: "All taxation shall be uniform upon the same class of subjects and ad valorem on all property subject to be taxed within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws."
(a) A tax upon a business or occupation is not a tax upon property within the ad valorem and uniformity clause of the above provision of the Constitution.
(b) Under the above provision of the Constitution, the Legislature is authorized to make classifications and subdivisions of classifications for the purpose of levying business or occupation taxes, and in doing so can make any classification or subdivision which is reasonable and not arbitrary.
(c) Under the above provision of the Constitution, the Legislature can put dealers in cigars in incorporated towns and cities in a class, and impose upon the members of such class an occupation tax, graduated according to the population of the towns and cities in which such dealers do business; and when the same tax is imposed upon each member of each class in every incorporated town and city in the state, and the method of its enforcement is the same, the uniformity required by the above provision of the Constitution is secured.
(d) An act making such classification and imposing an occupation tax upon the members thereof does not violate the above constitutional provision because dealers outside incorporated towns and cities are not taxed.
Such classification being reasonable, there is no denial of the equal protection of the law, and no deprivation of property without due process of law, and no violation of the provision of the state Constitution, which declares that protection of person and property is the paramount duty of government, and shall be impartial and complete.
The constitutionality and legality of an occupation tax is to be judged by its effect upon dealers generally, and is not to be construed as unreasonable because it is prohibitive upon certain financially weak persons. Only those laws imposing occupation taxes the general operation of which is confiscatory and oppressive are to be declared unconstitutional.
We were requested to review and reverse the decision in the case of Adams Motor Co. v. Cler, 149 Ga. 818, 102 S.E. 440 but after such review we decline to overrule that decision.
The court erred in granting the injunction in this case.
Suit by J. N. Hirsch and others against W. A. Wright, Comptroller General, and others. Judgment granting temporary injunction and defendants bring error. Reversed.
Numerous persons alleging themselves to be dealers in cigars, certain of them selling by retail, and certain others selling by wholesale, instituted an action against the Comptroller General of the State and the tax collector of Fulton county. The object of the suit was to enjoin collection of specific taxes levied by the state upon the above-named occupations in which the plaintiffs are severally engaged. The taxes were levied under the provisions of paragraphs 40 and 41 of section 2 of the General Tax Act approved August 15, 1921 (Acts 1921, pp. 38, 47, 48). Collection of the taxes was resisted on the ground of alleged unconstitutionality of the statute under which they were levied. Section 2 of the act provides:
Then follows a long list specifying different pursuits as objects of taxation contained in paragraphs 1 to 118, inclusive. In this list paragraph 40 is as follows:
Paragraph 41 is as follows:
It was contended that paragraph 40 was violative of article 7, § 2, par. 1, of the Constitution (Civil Code 1910, § 6553), which declares:
"All taxation shall be uniform upon the same class of subjects, and ad valorem on all property subject to be taxed within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws."
It was insisted that the act does not operate uniformly, because, while taxing cigar dealers as a class (admittedly within legislative power), the act does not place the same tax on all members of that class throughout the territory of the state, but levies different taxes against members of such class in cities and towns graduated according to population, and leaves out members of the class in unincorporated districts in the state, of which class there is a large number. For similar reasons paragraph 41 was alleged to be violative of the same clause of the Constitution.
In making another attack on paragraph 41 it was alleged that the normal conditions of the trade were such that the gross sales of a large number of the plaintiffs were only $750 per annum, and of others only $75 per annum, and that as to the former the tax would amount to all the profit, and as to the latter the tax would amount to the gross sales, and would in effect take plaintiffs' property without due process of law, in violation of article 1, § 1, par. 3, of the Constitution (Civil Code, § 6359), which declares:
"No person shall be deprived of life, liberty, or property, except by due process of law."
At an interlocutory hearing the judge granted a temporary injunction, and the defendants excepted.
Geo. M. Napier, Atty. Gen., Seward M. Smith, Asst. Atty. Gen., and Frank Carter, of Atlanta, for plaintiffs in error.
Hooper Alexander, of Atlanta, for defendants in error.
It is insisted that paragraphs 40 and 41 of section 2 of the General Tax Act of 1921 do not operate uniformly, because, while taxing cigar dealers as a class (admittedly within legislative power), they do not place the same tax on all members of that class throughout the territory of the state, but levy different taxes against members of such class in cities and towns graduated according to population, and exempt from such tax all members of the class in unincorporated districts in the state, of which there is a large number. It is further insisted that paragraph 41 is unconstitutional, because it operates more favorably for a large dealer in a small town than for a small dealer in a large town, and even in the same town, where the large dealer has a chain of stores operating under the payment of one tax, and the small dealer has but one store; also more favorably for nonresidents than for residents; also more favorably for dealers in unincorporated territory within the limits of the state than for dealers operating in towns and cities having the population specified in this section; and for these reasons it is alleged that this paragraph of this section of the act is discriminatory, and violates article 1, § 1, par. 2, of the Constitution of this state, which declares that-- "Protection to person and property is the paramount duty of government, and shall be impartial and complete." Civil Code 1910, § 6358.
Paragraph 41 is attacked on the ground that, under normal conditions of trade, gross sales of a large number of the plaintiffs amount to only $750 per annum, and the gross sales of others of the plaintiffs amount to only $75 per annum, and that as to the former class the tax would amount to all the profit made by such dealers, and as to the latter class the...
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