Burch v. Mayor of Savannah

| Ga. | Jan 15, 1871

McCay, J.

The license fee for retailing liquors is, in no proper sense, a tax. Its object is not to raise revenue. It has, for many years, been thought that this business was one dangerous to the public peace and the public morals, and it has been the uniform practice of the country to subject it to regulations; require license from some public functionary before it is engaged in, and to punish, as a crime, the pursuit of it without the license. The license is part of the police regulations of the country, and the fee is rather intended to prevent the indiscriminate opening of such establishments than to raise revenue by taxation. This power to regulate the sale of liquor is very generally committed, now, to the towns and cities, and this power is specially delegated to the City of Savannah: Revised Code, 4761. Nor are we able to see why a license to retail liquor should be held to include a license to retail other things than liquor. As we understand the statements in this bill, these parties do not pretend that they are simply liquor dealers. They admit that they are retail dealers of other things as well as liquors. We can see, therefore, nothing in the fact that they have paid the liquor license. As we have said, that is not a tax — it is a police regulation, so specially granted, by the law, to the city. Section 4761 of the Revised Code provides that, the said Mayor and Aldermen shall have the control and regulation of all shops, stores, taverns and bar-rooms, and the regulation of tavern licenses and licenses to retail liquors. But it is said that these parties have paid, first, a poll tax, second, a tax on their gross sales; and that this tax upon their trade, occupation, or business, as retailers, is a repetition of one or the other of these taxes.

There is no doubt but that, under the city charter, this tax upon the occupation of a retailer may be laid. This Court so expressly decided in 36th Georgia Reports, 460, in the case of Charlton vs. The Mayor and Aldermen of Savannah. Section 4749 of the Code provides that, they may tax “the inhabitants of the city, those who hold taxable property within the same,” and “ those who transact, or. offer to transact, business therein.” They may, by this section, also tax real and personal property, capital invested in said city, stocks in money corporations, choses-in-action, income and commissions derived from the pursuit of any trade, profession, faculty, or calling, dividends, bank, insurance, express, and other agencies, and all other property or sources of profit, not expressly prohibited, or exempt by State law, or competent authority of the United States. Nor do we see why the city may not tax the calling, as well as the income from the calling. It is usual for governments so to do. The United States Tax Laws are full of such instances. Attorneys, doctors, merchants, bankers, etc., all pay a special tax, as well as a tax upon their sales and their income. The right of taxation, in the Legislature, is without limit, except as provided in the Constitution. It is not a power specially granted; it is assumed to exist, and is limited by special clauses. We can see no reason, in the nature of things, why a tax may not be laid upon the land, and upon the crop, on the horse, and on the work of the horse, on the man, and on the income of the man; unless there be some special limitation of this power by the Constitution.

This Court has held that the limitations upon the taxing power, in the Constitution, apply as 'well to cities and towns as to the Legislature, and that all taxes upon property, when laid by a city, must be laid ad valorem, and be uniform upon all species of property taxed. Is this a tax upon property ? Very clearly, not. It is a tax upon occupation or employment, and has no reference to property. If it be objectionable at all to the constitutional limitations, it comes more nearly within the prohibition of section 29 of Article I., of the Constitution, which prohibits a poll tax, except for educational purposes, and limits even that to $1 00. But taxes upon professions and occupations of skill, as taxes upon lawyers, doctors, photographists, auctioneers, bank agents, wholesale and retail dealers, peddlers, etc., have never been, in this State, classed as poll taxes. The poll tax has always been required of each of them, notwithstanding the other tax. If the Legislature were to attempt, by taxing all occupations, practically, to annul the prohibition against a poll tax, the question made might arise. But there is a clear distinction between a tax upon certain specified businesses, where the skill of the operator is a source of profit, or where the public are appealed to for patronage and protection of a fixed and regular business, and a tax covering all persons, whatever may be their occupation. Necessarily, in the construction of the Constitution, we are to take words as they have, for years past, been used and understood in Legislative proceedings in this State.

The Code, which was before the Convention, and was adopted by it, as the law, makes the distinction we have alluded to, very clearly. It taxes every person twenty-five cents: Section 806, paragraph 3. This is the poll tax. It, then, by various paragraphs, taxes lawyers, doctors, etc.: Section 806, paragraphs 1, 2, 4, 5, 6, 7, 8, 9. So, too, did the Legislatures of 1868 and 1869. And such has always been a distinction, kept up in this State. It is founded, too, in fact. The skill, or education, or tact, which is the source of profit in these occupations, is clearly distinguishable from that capacity which is in every man to work for his support with the hands which God has given him.

Judgment affirmed.