180 Ga. 519 | Ga. | 1935
The City of Douglas adopted an ordinance for the year 1933, providing special occupation taxes on businesses as follows: (a) “Groceries, retail, including- fruits and confectioneries, poultry and eggs, dairy products, with a stock of merchandise under $250.00, $15.00; with stock of $250.00 to $500.00, $30.00; with stock of $500.00 or more, $40.00.” (b) “Grocery store, each not including- bottled soda-water, operating under what is known as ‘cash and carry’ system, and not using delivery at all times available to customers, $75.00.” A similar ordinance was adopted for the year 1934, which carried an amendatory provision: (c) “Grocery stores, retail, each, not including bottled soda-water, being one of a chain of five or more stores owned and operated by the same person, firm, or corporation in the State of Georgia, on owner or operator, $75.00.” Executions were issued against the South Georgia Grocery Company as operator of a retail grocery store, and were levied upon its property, for $75.00 each for such taxes for the
1. The difference in operating a retail grocery store on the cash axxd carry system, where all sales are for cash and no deliveries made outside the store, and operating the same kind of store oxx a system of cash and credit sales and making deliveries of goods in the store and at other places, is not a reasonable basis of classification, for the purpose of taxing the former a higher rate than the latter. American Bakeries Co. v. Griffin, 174 Ga. 115 (162 S. E. 513) ; City of Newnan v. Atlanta Laundries Inc., 174 Ga. 99 (162 S. E. 497, 87 A. L. R. 507) ; Wofford Oil Co. v. Boston, 170 Co. 624 (2) (154 S. E. 145) ; City of Danville v. Quaker Maid Inc., 211 Ky. 677 (278 S. W. 98, 43 A. L. R. 590). The ordinance in question differs from the ordinances involved in Steuer v. Atlanta, 176 Ga. 433 (168 S. E. 7); Derst Baking Co. v. Savannah, 180 Ga. 510, which did xxot attempt (as was attempted by the ordinance in question) to divide a business and tax separately the constituent elements or ixarts thereof.
2. The tax not being based on a reasonable classification and a higher' tax beixxg imposed on operators under the cash axxd carry system than on those operating on the ei-edit and delivery system, such higher tax is discriminatory and void and inhibited by the eqxxal-profoeCon claixses of the State and Federal constitutions.
3. The amendatory ordinance of 1934 relating to chaixx stores, properly construed, was an attempt to impose a tax on the business of operating in this State “one of a chain of five or more stores” by the same per
(а) The case differs from State Board of Tax Commissioners v. Jackson, 283 U. S. 527 (51 Sup. Ct. 540), Louis K. Liggett Co. v. Lee, 288 U. S. 517 (53 Sup. Ct. 481), Fox v. Standard Oil Co., U. S. (79 L. ed. 339); Stewart Dry Goods Co. v Lewis, U. S. , announcing the doctrine that the operation of a chain of stores by the same person differs fundamentally from the form and method of merchandising where separate persons operate independently their individual stores, and that such difference affords ground for classification by the legislature for the purpose of taxing chain stores higher than individual stores. The rulings in those cases did not involve or decide the question involved in the instant case, of discrimination between “chain stores” as a class.
(б) Having held that the chain-store ordinance is void for the above reason, no ruling will be made upon the question whether the ordinance is void on the further ground, as ruled by the trial judge, that “the city had no authority to take into consideration territory outside its jurisdiction upon which to base its classification for taxation.”
4. Under the agreed facts the judge properly enjoined enforcement of the ordinances in question.
Judgment affirmed.
As to the judgment granting an injunction against criminal prosecutions, I dissent. Candler Inc. v. Atlanta, 178 Ga. 661 (174 S. E. 129). In all other respects I concur.