183 Ga. 583 | Ga. | 1936
A person engaged in selling named brands-of oleomargarine, one ingredient in each of which was cocoanut oil, brought suit against the commissioner of agriculture, to enjoin enforcement of the provisions of the act of 1935 (Ga. L. 1935, p. 81), imposing an excise tax on the sale or exchange of oleomargarine containing ingredients other than those specified in the act. The alleged grounds of relief were as dealt with in the syllabus, the plaintiff’s business relating to sale of oleomargarine on which the tax was imposed. ' The case was submitted to the judge on all questions of law and fact. After hearing evidence he refused an injunction, and the plaintiff excepted.
“Every presumption will be made in favor of the constitution-. ality of an act of the legislature. Allison v. Thomas, 44 Ga. 649. Before an act of the legislature will be declared unconstitutional, the conflict between the act and the fundamental law must be clear and palpable.” Cooper v. Rollins, 152 Ga. 588, 590 (110 S. E. 726). The oleomargarine act imposes an excise tax, since it is a tax levied upon a business occupation or vocation. Lloyd v. Richardson, 158 Ga. 633 (124 S. E. 37); Adams Motor Co. v. Cler, 149 Ga. 818 (102 S. E. 440). In Singer Manufacturing Co. v. Wright, 97 Ga. 114, 118 (25 S. E. 249, 35 L. R. A. 497), there was imposed a tax upon every sewing-machine company selling sewing-machines by itself or its agents, and upon all wholesale dealers; and it was maintained that the tax was not uniform, because no tax was required of retailers of machines. The statute was held valid, the court saying: "The General Assembly might well deem it in accord with a sound public policy to encourage the small dealer in his initial efforts to build up a business, by exempting him from a tax he could ill afford to pay, and taxing others in the same line of trade, but doing a business the volume of which warranted the additional burden of an occupation tax.” In Wright v. Hirsch, 155 Ga. 229, 235 (116 S. E. 795), the court said: “What, then, is the uniformity required in the classification of occupations for taxation? . . The uniformity required in the latter kind of taxation is simple. It is this, that' the tax upon every member of any class, which the taxing authority may make, shall be uniform. When that is accomplished, there is'no infraction of the constitution. In McGhee v. State [92 Ga. 21, 17 S. E. 276], it was said: 'When, however, the legislature does
In Hunter v. Wright, 169 Ga. 840 (152 S. E. 61), this court held that the legislature had the power to exempt a certain class from the general operation of a tax statute. The tax involved was an occupation tax imposed on all insurance agents. There was a provision that the railroad-ticket agents selling accident-insurance tickets should not be deemed to be insurance agents, and it was claimed that the tax was invalid because of this exemption. This court held that the legislature had the right to create a class
The petitioner asserts that the act is void as a violation of the sections of the Federal constitution heretofore cited. A case very analogous to the present one, decided by the Supreme Court of the United States, is Ohio Oil Co. v. Conway, 281 U. S. 146, 159 (50 Sup. Ct. 310, 74 L. ed. 775), in which was involved the validity of a Louisiana statute which levied a tax on oil, and the tax was graduated in amount depending on the specific gravity of the oil. The specific gravity of the oil was the sole deciding factor as to whether a certain rate of tax would apply, or another rate would be applicable. Mr. Chief Justice Hughes, rendering the opinion, said: “The applicable principles are familiar. The States have a wide discretion in the imposition of taxes. When dealing with their proper domestic concerns, and not trenching upon the prerogatives of the national government or violating the guarantees of the Federal Constitution, the States have the attribute of sovereign powers in devising their fiscal systems to insure revenue and foster them local mleresls. The States, in the exercise of their taxing power, as with respect to the exertion of other powers, are subject to the requirements of the due process and the equal protection clauses of the Fourteenth Amendment, but that Amendment imposes no iron rule of equality, prohibiting the flexibility and variety that are appropriate to schemes of taxation. The State may tax real and personal property in a different manner. It may grant exemptions. The State is not limited to ad valorem taxation. It may impose different specific taxes upon different trades and professions and may vary the rates of excise upon various products. In levying such taxes, the State is not required to resort to close distinctions or to maintain a precise, scientific uniformity with reference to composition, use or value. To hold otherwise would be to subject the essential taxing power of the State to an intolerable supervision, hostile to the basic principles of our Government and wholly beyond the protection which the general clause of the Fourteenth Amendment was intended to as
In the testimony it appears that the elements composing the non-taxable oleomargarine were or could be raised in Georgia, and the development of their production would be beneficial to the State. Quite pertinent to that suggestion is the opinion of the Supreme Court of the United States in Alaska Fish Salting &c. Co. v. Smith, 255 U. S. 44 (41 Sup. Ct. 219, 65 L. ed. 489). A statute imposed a tax upon those manufacturing fish oil, fertilizers, and fish meal, in whole or in part from herring. The statute was attacked because no tax was levied upon the making of such products from other fish. ' The Supreme Court upheld the
A further attack is made upon the oleomargarine law on the ground that it is invalid as being confiscatory, in violation of the State and Federal constitutions. It must be conceded that the tax imposed by the oleomargarine law is burdensome, but does this make it violative of the due-process clause of the constitution of the State or of the United States ? The provisions of the State and Federal constitutions are identical. It seems, under the authorities, that a legislature may pass laws which would render impossible the continuance of a particular business, because of the size of the tax. In Morton v. Macon, 111 Ga. 162 (36 S. E. 627, 50 L. R. A. 485), this court seems to have recognized the confiscatory power of the legislature, by reason of the statement in that decision as follows: '“We may, for the purposes of this case, grant to the fullest extent the authority of the lawmaking power of the Nation or of any State to respectively enact laws of the nature above indicated, without touching the question we have herein undertaken to decide. Granting that the General Assembly of this State might tax out of existence useful occupations, and even that it might in terms empower a city so to do, we are perfectly certain that nothing of the kind has been attempted in the present instance.” In McCulloch v. Maryland, 4 Wheaton, 316 (4 L. ed. 579), was announced the familiar statement: “That the power to tax involves the power to destroy . . are propositions not to be denied.” In Veazie Bank v. Fenno, 8 Wallace, 533, 548 (19 L. ed. 482), the court said: “It is insisted, how
In McCray v. United States, 195 U. S. 27, 60 (24 Sup. Ct. 769, 49 L. ed. 78, 27 Ann. Cas. 561), was involved a law which taxed uncolored oleomargarine one fourth of a cent a pound, and colored oleomargarine ten cents a pound. It was proved that as a result of this high tax on colored oleomargarine the sale of this product was absolutely destroyed. It was contended that this was the very purpose of the law, and that a tax could not be so high in amount as to result in banning the sale of a legitimate and wholesome product. The court held the statute valid, and declared that a tax is valid even though it may destroy a legitimate business, saying: “The proposition that where a tax is imposed which is within the grant of powers, and which does not conflict with any express constitutional limitation, the courts may hold the tax to be void because it is deemed that the tax is too high, is absolutely disposed of by the opinions in the eases hitherto cited, and which expressly hold, to repeat again the language of one of the cases (Spencer v. Merchant, 125 U. S. 345 [8 Sup. Ct. 921, 31 L. ed. 763]), that The judicial department can not prescribe to the legislative department limitations upon the exercise of its acknowledged powers. The power to tax may be exercised oppressively upon persons; but the responsibility of the legislature is not to the courts, but to the people by whom its members are elected.’” In Alaska Fish Salting &c. Co. v. Smith, supra, the court held: “Even if the tax should destroy a business, it would not be made invalid or require compensation upon that ground alone. Those who enter upon a business take that risk. We know of no objection to exacting a discouraging rate as the al
The foregoing is sufficient elaboration of the rulings announced in the first and second headnotes. The third headnote does not require elaboration.
Judgment affirmed.