Dennison Manufacturing Co. v. Wright
120 S.E. 120
Ga.
1923
Check Treatment
Hines, J.

(After stating the foregoing facts.)

1. It is urged by the Attorney-General, that this action is against the Comptroller-General of the State in his official capacity, to enforce a liability against the State, and is for this reason, in effect, one against the State, which can not be maintained without its consent. We do not construe this action as one brought against the defendant in his official capacity, but as an action against him individually for an act which, while done in his official capacity, was wholly without lawful authority, and beyond the scope of 'his official power. Hamby v. Ga. Iron Co., 127 Ga. 792 (2) (56 S. E. *7941033). The use of the language, “who is Comptroller-General of the State of Georgia,” after the name of the defendant in the petition, is descriptio personae solely; and otherwise has no legal significance. Stewart v. Atlanta Beef Co., 93 Ga. 12 (18 S. E. 981). In Printup v. Cherokee Railroad Co., 45 Ga. 365, the State had seized a railroad and placed the same in the possession and control of Printup as agent of the State. The railroad company-filed a bill against Printup and others, seeking to marshal its assets, and to take this railroad from the possession of the agent of the State and place the same in the hands of a receiver. This court held that “ If the State was in possession, it is not in the power of the judiciary to oust her, since the State, as such, can not be impleaded in her own courts except by express consent of the proper authorities.” In that case the suit was in effect one against the State, and not against its agent in his - individual capacity. Here the suit is against the official in his individual capacity, and is not aimed at the State.

2. It is next urged, that the payment of this tax was voluntarily made by the plaintiffs; and that for this reason it can not be recovered. It is unquestionably true, that in case of the payment of an illegal tax, the same can not be recovered back, “unless made under an urgent and immediate necessity therefor, or to release person or property from detention, or to prevent an immediate seizure of person or property. Piling a protest at the time of payment does not change the rule.” Civil Code (1910), § 4317; First Nat. Bank v. Americus, 68 Ga. 119 (45 Am. R. 476); Hoke v. Atlanta, 107 Ga. 416 (33 S. E. 412); Wabaunsee County v. Walker, 8 Kan. 431; Union Pacific R. Co. v. Dodge Co., 98 U. S. 541 (25 L. ed. 196). In Hoke v. Atlanta, supra, this court recognized the difference between the payment of an illegal tax, when no mode of collecting the tax was provided except an ordinary proceeding at law or in equity, and such payment when failure to pay subjects the taxpayer to prosecution and punishment. In the former case a payment would be voluntary, though made under protest. In the latter case, when made to prevent prosecution and under protest, the payment would not be voluntary. The petition alleges, that the defendant, as Comptroller-General, demanded that Christie, as agent of this company, pay said occupation tax for 1919 of $600, or be subject to prosecution for a misdemeanor *795for failure to do so; and that to avoid trouble the payment of this tax was made. The demurrer admits these facts, and they are to be taken to be true. The general tax act requires the agent or representative of any foreign corporation to register and pay the occupation tax therein imposed, and his failure to do so subjects him to prosecution for a misdemeanor. Acts 1918, p. 43. Under these facts, we can not say that the payment of this tax was voluntary.

3. This brings us to the consideration of the question whether the exaction of this’ tax was in violation of the interstate-commerce clause of the constitution of the United States. The general tax act of 1918 (Acts 1918, pp. 43, 53) imposes an occupation tax “Upon every agent or representative of any foreign or nonresident corporation, said agent or representative having a place of-business or office in this State.” If the plaintiff and its agent were engaged solely in conducting an interstate business, and were not engaged in doing any intrastate business, would the exaction of this tax violate the interstate-commerce clause of the Federal constitution ? A corporation of one State may go into another, without obtaining the leave or license of the latter, for all the legitimate purposes of such commerce; and any statute of the latter State which obstructs or lays a burden on the exercise of this privilege is void under the commerce clause. Crutcher v. Kentucky, 141 U. S. 47 (11 Sup. Ct. 851, 35 L. ed. 649); Western Union Telegraph Co. v. Kansas, 216 U. S. 1 (30 Sup. Ct. 190, 54 L. ed. 355); International Textbook Co. v. Pigg, 217 U. S. 91 (30 Sup. Ct. 481, 54 L. ed. 678, 27 L. R. A. (N. S.) 493, 18 Ann Cas. 1103); Sioux Remedy Co. v. Cope, 235 U. S. 197 (35 Sup. Ct. 57, 59 L. ed. 193); Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282, 291 (42 Sup. Ct. 106, 66 L. ed. 239). A statute may be invalid as applied to one. state of facts, and yet valid as applied to another. Poindexter v. Greenhow, 114 U. S. 270 (5 Sup. Ct. 903, 29 L. ed. 185); St. Louis &c. R. Co. v. Wynne, 224 U. S. 354 (32 Sup. Ct. 493, 56 L. ed. 799, 42 L. R. A. (N. S.) 102); Kansas City Southern R. Co. v. Anderson, 233 U. S. 325 (34 Sup. Ct. 599, 58 L. ed. 983); Dahnke-Walker Milling Co. v. Bondurant, supra. Likewise a constitutional law may be unconstitutionally administered. If the purpose of the legislature by this act was to impose an occupation tax upon a foreign *796corporation engaged solely in interstate commerce, it would be void because in violation of the interstate-commerce provision of the constitution; and the exaction of an occupation tax thereunder from such corporation would be illegal. If the purpose of the act was to impose an occupation tax only on agents and representatives of foreign corporations engaged in intrastate business, or in intrastate and interstate business, then the exaction of this occupation tax from the plaintiffs who were engaged solely in interstate commerce would be void because imposed without authority of law. Where a foreign corporation rents and maintains a local office with a stock of samples and a force of office employees and traveling-salesmen, merely to obtain orders locally and in other States, subject to approval by its home office, for its goods to be shipped directly to the customers from its home State, this business arrangement is part of its interstate commerce, and not subject to local excise taxation. Cheney Co. v. Massachusetts, 246 U. S. 147 (38 Sup. Ct. 295, 62 L. ed. 632). Under the allegations of the petition in this case, the plaintiffs were engaged exclusively in interstate commerce. City of Atlanta v. York Mfg. Co., 155 Ga. 33 (116 S. E. 195). The plaintiff rented and maintained an office in the City of Atlanta as an incident to and means of conducting-said business, and does not do ány intrastate business from said office. This being so, its resident agent or representative in charge of such office was not subject to the occupation tax demanded and collected by the Comptroller-General from the company and its agent for 1919.

4. Was the Comptroller-General individually liable to the plaintiffs for the exaction and collection of this occupation tax? We have seen that under the facts of this case this tax was illegal. If it was not the purpose of the legislature to impose an occupation tax upon the agents or representatives of a foreign corporation engaged exclusively in interstate business, then the Comptroller-General would be individually liable, under the ruling in Stewart v. Atlanta Beef Co., supra. If the purpose of the legislature in enacting the general tax act of 1919 was to impose this tax upon the agents or representatives of the foreign corporation, although the latter was engaged solely in interstate commerce, then such ac-t, so far as applicable to such foreign corporation, would be unconstitutional and void. Would the Comptroller-General in that case *797be exempt from liability on the ground that he demanded and collected this tax under such unconstitutional statute? This is the vital question in the case. An unconstitutional statute, though having the form, features, and name of law, is in reality no law. It is wholly void. In legal contemplation it is as inoperative as if it had never been passed. It has been declared that it is a misnomer to call such statute a law. Such a statute confers no authority upon any one, and affords protection to no one. Norton v. Shelby County, 118 U. S. 425 (6 Sup. Ct. 1121, 30 L. ed. 178) ; Ex Parte Siebold, 100 U. S. 371, 376 (25 L. ed. 717); Board of Commissioners v. City of Bloomington, 253 Ill. 164 (97 N. E. 280, Ann. Cas. 1913A, 471); Bonnett v. Vallier, 136 Wis. 193, 116 N. W. 885, 17 L. R. A. (N. S.) 486, 128 Am. St. R. 1061); Felix v. Commissioners, 62 Kan. 832 (62 Pac. 667, 84 Am. St. R. 424); State v. Tufly, 20 Nev. 427 (22 Pac. 1054, 19 Am. St. R. 374); Adsit v. Osmun, 84 Mich. 420 (48 N. W. 31, 11 L. R. A. 534) ; McCants v. Layfield, 149 Ga. 238 (99 S. E. 877).

In Osborn v. Bank of the United States, 9 Wheat. 738 (6 L. ed. 204), Chief Justice Marshall declared that “it is an extravagant proposition that a void act can afford protection to the person who executes it.” In Boston v. Cummins, 16 Ga. 102, 106 (60 Am. D. 717), this court declared that “The unconstitutional acts of the legislature, State and Federal, are not laws; and no court will execute them, having a proper sense of its own obligations and responsibilities.” In Wellborn v. Estes, 70 Ga. 390 this court said: “ Legislative acts in violation of the constitution of this State or of the United States are void.” The constitution of this State declares that “ Legislative acts in violation of this constitution or the constitution of the United States are void, and the judiciary shall so declare them.” Proceedings under an unconstitutional statute had before such statute is judicially declared to be unconstitutional are void. Jordan v. Franklin, 131 Ga. 487 (52 S. E 673); Worth County v. Crisp County, 139 Ga. 117 (3) (76 S. E 747); James v. Blakely, 143 Ga. 117 (84 S. E. 431).

So the Comptroller-General will not be protected from individual liability under this general tax act, if it in fact imposes an occupation tax upon the plaintiffs, for the reason that such act is unconstitutional so far as the plaintiffs are concerned. As an unconstitutional act confers no authority upon an officer, his acts *798thereunder are the same as if no statute on the subject existed. He is as much without authority to enforce a tax levy under an unconstitutional statute as he would be to levy and collect such,tax in the absence of any statute. This being so, under the ruling in Stewart v. Atlanta Beef Co., supra, the Comptroller-General is individually liable, under the facts stated in the petition of the plaintiffs, for the exaction and collection of this tax from them. The ruling in that case seems to be in harmony with the general rule that a person aggrieved by the wrongful enforcement against his person or property of a tax illegally levied and collected under compulsion of a statute which makes failure to pay it an indictable offense, and for which tax he is not liable, may maintain an action for damages against the tax-collector, according to the local practice and the circumstances of the particular case, in the form of trover or trespass, or, where he has been placed under arrest, assault and false imprisonment. Coulson v. Harris, 43 Miss. 751; Tuttle v. Everett, 51 Miss. 27 (24 Am. R. 622); 37 Cyc. 1278, X, D, 3, a. We recognize that this rule may operate harshly in some cases before the statute has. been judicially declared unconstitutional, as where a justice of the peace is liable in damages if a person is arrested on his warrant issued under an unconstitutional statute (Kelly v. Bemis, 4 Gray (Mass.), 83 (64 Am. D. 50), and similar cases); but where payment of the illegal tax is made under compulsion and protest, the Comptroller-General is put upon notice that the taxpayer may bring assumpsit against him to recover the money paid, or damages for the illegal and wrongful exaction of the tax. If the officer pays the money into the State treasury after such protest, he does it with notice that he may be sued in respect thereto; and such payment will not shield him against suit. Elliott v. Swartwout, 10 Peters, 137 (9 L. ed. 373); Rushton v. Burke, 6 Dak. 478 (43 N. W. 815); Hearsey v. Pruyn, 7 Johns. 179.

Besides, should there be any recovery against the defendant, the legislature should, and doubless will, reimburse the defendant, as the State has received the money raised by the exaction of this tax.

The court below erred in sustaining the demurrer to the petition on the ground that it set forth no cause of action.

Judgment reversed.

All the Justices concur.