15 S.E.2d 851 | Ga. | 1941
1. The act approved February 16, 1938 (Ga. L. Ex. Sess. 1937-1938, pp. 180-183), taxing rolling-stores, does not violate the uniformity requirement of the constitution (article 7, section 2, paragraph 1; Code, § 2-5001), because of the provisions of section 4 exempting from its operation vehicles used exclusively for the sale and delivery of ice, coal, dairy products, including cheese and ice cream, soft drinks, malt beverages, furniture, petroleum and its products, tobacco and its products, farm products (when sold by the producer), bread or other bakery products, nuts, potato chips, sandwiches, and meats derived from animal products.
2. A ground of an affidavit of illegality attacking the above act because it offends the due-process provision of the State constitution (Code, § 2-103), which alleges no specific facts, but as amended consists entirely *530 of mere conclusions, presents no defense to an execution issued for taxes under the act.
Paragraph 3 was as follows: "Because said act is unreasonable, unjust, prohibitory, and in its effect destructive of the class of business to which it applies, the income from the operation of a rolling-store not being sufficient to pay the license tax provided for therein and leave any amount whatever as net profit to the owner." Paragraph 3 was subsequently amended by adding the following: "and is therefore violative of section 1, article 1, paragraph 3, of the constitution of the State of Georgia, which provides, `No person shall be deprived of life, liberty, or property without due process of law.'" Objections to the amendment were upon the grounds, that it together with the original constitutes no defense to the execution, and fails to specify the provisions of the rolling-store act alleged to contravene the constitutional provision referred to; that it fails to point out any reason upon which the act is alleged to be unconstitutional; that it fails to set forth any facts to show that the payment of the tax leaves no amount whatever as net profit to the owner, and alleges only conclusions by the pleader; and the amendment itself adds a new ground of illegality by raising a constitutional question without making oath that the defendant did not know of such ground when the original affidavit was filed. The objections were overruled, and the amendment was allowed. The revenue commissioner demurred to the affidavit of illegality as amended, on the grounds that no cause of illegality is set forth, that the affidavit of illegality as amended sets forth no defense to the execution, and that it is insufficient in law to constitute any defense. The demurrer was overruled, and the plaintiff in execution excepted.
1. The first attack upon the statute under which the execution issued is made in paragraph 2, and is based upon the contention that the act fails to meet the uniformity requirement of article 7, section 2, paragraph 1, of the State constitution. Code, § 2-5001. This constitutional provision was *532
amended in 1937, but the portion applicable to the question here, to wit, "All taxation shall be uniform upon the same class of subjects, . . within the territorial limits of the authority levying the tax," remains the same. It is contended that the uniformity required by the constitution is destroyed in the act, because of the exemptions therein provided. The authority of the General Assembly under the constitution before and after the 1937 amendment to classify subjects for taxation can not be successfully challenged. The power thus to classify is subject to the limitation that any classification must be reasonable, natural, and not arbitrary. Mutual Reserve Fund LifeAssociation v. Augusta,
In Featherstone v. Norman, supra, this court had for consideration an attack upon the State income-tax statute, and in sustaining the statute against the constitutional attack that it lacked uniformity this court said: "To be uniform under this provision, taxation need not be universal. Certain objects may be made its subjects, and others may be exempted from its operation. Certain occupations *533
may be taxed, and others not; but as between the subjects of taxation in the same class there must be equality. All that the law requires is that classification of persons who are to be exempt shall not be arbitrary and unreasonable." It was there held that the State income-tax statute was not unconstitutional because it exempted incomes under a certain amount, or because it increased the rate as the income increased. See Adams Motor Co.
v. Cler,
2. The affidavit of illegality assailed the statute on the ground that it deprived him of property without due process of law, in violation of article 1, section 1, paragraph 3, of the constitution (Code, § 2-103). This ground states no specific facts, but rests solely upon the general assertion of the pleader to the effect that a rolling-store operator can not pay the tax required by this act and have left any net profit. It is not alleged what is the gross or net income of any rolling-store operator. In Bennett v. Public-Service Commission,
Judgment reversed. All the Justices concur.