180 Ga. 805 | Ga. | 1935
Lead Opinion
During each of the years 1930, 1931, 1932, 1933, and 1934, there was of force in the City of LaGrange an ordinance levying an occupation tax of $50 upon each contractor engaged in “street or sidewalk paving.” Claiming that J. E. Whitley, operating as Whitley Construction Company, was subject to this tax for each of these years and had not paid the same, the city authorities, on June 13, 1934, caused an execution to be issued in favor of the city and against Whitley for the total sum claimed.
The questions for decision are whether the petition was subject to either ground of the demurrer, and whether under the evidence the injunction should, as a matter of law, have been denied. Whitley contends that while he is engaged in the business of a paving contractor, he did not conduct such business in the City of La-Grange during any of the years for which the tax was claimed, except in 1930 and 1934, although he personally resides and maintains his general office in that city. He did some paving within the limits of the city during the years 1930 and 1934, but he insists that the city authorities, by a valid contract, relieved him of the tax for those years. He further contends that in no event can he be held liable for the tax referred to, because the business con
The defendants introduced J. H. Moss, who testified by affidavit as follows: “That he is the city clerk and treasurer of the City of LaGrange, and has been for the past seven years; that he knows J. E. Whitley, and that said J. E. Whitley resides in and has his legal domicile in LaGrange, Troup County, Georgia, and that said J. E. Whitley does business under the name of the Whitley Construction Company, and as such is engaged in the business of paving contractor, paving streets in cities and highways; that he also
The court did not err in overruling the general demurrer to
No contention was made by the plaintiff as to the authority of the city to levy an occupation tax upon a contractor engaged in the business'of paving streets or sidewalks, provided such business is conducted within its territorial limits. That the city had the charter power to do this, see Ga. L. 1901, p. 489 et seq. The plaintiff stated in his affidavit that he was engaged in the paving business, which statement, when construed most strongly against him as a party to the case, must be taken as referring to the business of paving streets and sidewalks. Steele v. Central of Georgia Railway Co., 123 Ga. 237 (51 S. E. 438). It further appeared from his affidavit that his office where his “general office work was done” was located within the limits of the city. This would necessarily imply that his managerial and executive work was conducted at that point. But the evidence for the defendants went into detail and explained fully the nature of the acts carried on at the general office. This evidence was not disputed by the plaintiff, nor was it inconsistent with anything testified by him. The evidence as a whole demanded a finding that the plaintiff was engaged, in the business of a contractor for the purpose of paving streets and sidewalks during each of the five years in question, and that he conducted such business each year in the City of LaGrange, within the meaning of the ordinance. This conclusion is not altered by the fact that during certain years the physical or ministerial performance of all his paving 'contracts was done elsewhere. Under the facts appearing, the rule that a municipality can not tax the constituent elements of a business is without application. Wofford Oil Co. v. Boston, 170 Ga. 624 (154 S. E. 145). What is done at the general office or general headquarters can not be said to be a mere incident of a business in which the proprietor is engaged. It is a substantial and necessary portion of the composite undertaking, and is not a distinct element or part, or a mere incident of such
There is no merit in the plaintiff’s contention that he was relieved of the tax for certain years by agreement with the city authorities. Assuming, without deciding, that an agreement as to an occupation tax as distinguished from an ad valorem tax might be valid if it contemplated a fair and just deduction from the amount payable under a paving contract, such deduction to be the equivalent of paying the tax (Cartersville Improvement &c. Co. v. Mayor &c., 89 Ga. 683 (2), 16 S. E. 25; Tarver v. Dalton, 134 Ga. 462, 67 S. E. 929, 29 L. R. A. (N. S.) 183, 20 Ann. Cas. 281), the evidence for the plaintiff in this case was too vague and indefinite ns to the existence of such a contract. It does not show
Nor is there any substance in the contention that the plaintiff was not liable because the business conducted by him was that of doing paving under contracts with public bodies, whereby he occupied the status or position of an agency of government. The principle here invoked has no application to one conducting such a business for private gain under contracts with the State or Federal government or any subdivision or department thereof. The public character of the other contracting party does not operate to relieve a person conducting such business of an occupation tax for which he would otherwise be liable. 61 C. J. 368, §§ 365, 368.
The judge erred in granting an injunction.
Judgment reversed.
Dissenting Opinion
dissenting. Regardless of all question of charter power, the ordinances in question as properly construed were not applicable to the plaintiff’s business during the years 1931, 1932, and 1933, when he did no paving in the City of LaGrange and did not offer or propose to do so. The ordinances for these' years should not be construed as imposing a business tax for paving where the contractor did no actual paving in the city. The execution having included a tax for the three years mentioned, it was to that extent illegal, and its enforcement was properly enjoined.
