184 Ga. 277 | Ga. | 1937
The Fruit Company, a corporation of Floyd Coiinty, filed a suit against the City of Dalton and W. II. Souther as marshal of the City of Dalton, alleging substantially the following: The plaintiff is engaged in the wholesale produce and beer business, having its sole office and place of business in Rome, Georgia. In the operation of its business as a wholesale beer distributor, the plaintiff covers the northwestern section of Georgia, and has a number of customers located throughout that ter
“The authorities of any municipal corporation shall not levy or collect any tax or license from a traveling salesman engaged in taking orders for the sale of goods where no delivery of goods is made at the time of taking such orders.” Code, § 92-4105. The only question for determination in this case is whether the business of the plaintiff, in view of its location and manner of operation, is protected by this section from taxation by the City of Dalton. This court has had before it several cases involving the act of 1896 (Ga. L. 1896, p. 36), from which this section is codified. In Kimmel v. Americus, 105 Ga. 694 (31 S. E. 623), it was said: “We apprehend that one purpose of the General As
It is argued by the defendant that the determining question is whether the sales are consummated in Rome, or in Dalton, the place of delivery; and the case of McCullough v. Griffin, 181 Ga. 832 (184 S. E. 599), is cited in support of this contention. We can not agree with this view. Under the decisions in the Kimmel and Hofmayer cases, supra, the mere place of delivery is immaterial. The situs of the business is the controlling factor, and in the case of this plaintiff the situs is at Rome. Compare City of LaGrange v. Whitley, 180 Ga. 805 (180 S. E. 823). Delivery is a mere incident of a business, and within itself is not taxable under this ordinance, which simply levies a business or occupation tax. Hewin v. Atlanta, 121 Ga. 723 (49 S. E. 765, 67 L. R. A. 795, 2 Ann. Cas. 296); Southern Express Co. v. Rose Co., 124 Ga. 581 (53 S. E. 185, 5 L. R. A. (N. S.) 619); Wofford Oil Co. v. Boston, 170 Ga. 624 (154 S. E. 145). The opinion in McCullough v. Griffin, supra, was concurred in by only four Justices, two concurring in the result only; and accordingly that decision is not binding as authority upon this court. Moreover, it appears to be in conflict with previous unanimous decisions. See Wofford Oil Co. v. Willacoochee, 184 Ga. 275 (191 S. E. 128). While the writer was one of those who‘concurred in the decision in the McCullough case, and accepts in full his share of responsibility therefor, he is now of the opinion, after further study, that the decision is unsound and should not be followed. That, like the present, was a beer case. The malt-beverage act (Ga. L. 1935, p. 73) provided as follows: “Sec. 7. That if any business allowed under the provisions of this act is proposed to be carried on within the corporate limits of a municipality, the applicant for license shall pay to the proper authority, to be designated by the governing body of such municipality, such annual license fee as may be fixed by the said governing body, which license shall apply to and be required for each brewery or place of manufacture and also for each place of wholesale and retail distribution; and it is further
Judgment reversed.