45 S.E.2d 220 | Ga. | 1947
1. The amendment to the Constitution of 1877 (Ga. L. 1945, p. 101), which was ratified and proclaimed on the same dates as was the Constitution of 1945, never became operative either as an amendment to the Constitution of 1877 or as an amendment to the Constitution of 1945.
2. The act of the General Assembly (Ga. L. 1947, p. 704), authorizing the Commissioners of Roads and Revenues of Fulton County to classify businesses in unincorporated areas of the county and to levy a tax thereon for general revenue purposes, was invalid as being violative of the uniform-taxation provision of the Constitution of Georgia, art. VII, sec. I, par. III (Code, Ann. Supp., § 2-5403).
3. Under the above rulings, and without passing upon any of the other questions involved, the Commissioners of Roads and Revenues of Fulton County were without authority to levy a tax upon the businesses of the plaintiffs, which were located exclusively in unincorporated areas of Fulton County, and the trial court did not err in so holding.
2. The constitutional amendment which authorized Fulton County through its proper authorities to classify businesses located outside the corporate limits of municipalities and to levy a license *882
tax thereon, not having been operative for the reasons set forth in the first division of this opinion; the remaining question is whether the act of the General Assembly (Ga. L. 1947, p. 704), which undertakes to convey the identical authority is unconstitutional, as contended by the plaintiffs. It is true that in many instances where the legislature has first brought within the police power of the State the subjects of particular businesses for police regulation, such as dance halls, beer parlors, amusement places, wrestling arenas, tourist camps, etc., counties and municipalities may thereafter regulate such businesses and as an incident thereto require the payment of a license fee. However, in the instant case the statute before us does not purport to be and cannot be said to be in the exercise of the police power of the State, but is purely and simply an effort on the part of the General Assembly to delegate to the county the authority to classify for taxation any and all businesses conducted within the county outside of municipalities for the purpose of levying a tax thereon as a general revenue measure. We will pretermit any discussion or any ruling on the question as to whether or not the instant act of the General Assembly is an authorized delegation of its own specific constitutional authority to classify businesses for the purpose of taxation, and confine the ruling here made to the one question presented as to whether or not the instant act is invalid as being violative of the uniform-taxation requirement of the Constitution of 1945. The old uniformity provision as embodied in the Constitution of 1877, art. VII, sec. II, par. I (Code, § 2-5001) is as follows: "All taxation shall be uniform upon the same class of subjects, and ad valorem on all property subject to be taxed within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws. The General Assembly may, however, impose a tax upon such domestic animals as from their nature and habits are destructive of other property." The new provision requiring uniformity of taxation as embodied in the Constitution of 1945, art. VII, sec. I, par. III (Code, Ann. Supp., § 2-5403) is as follows: "All taxes shall be levied and collected under general laws and for public purposes only. All taxation shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax. Classes of subjects for taxation of property shall consist of tangible property and one or more classes of intangible personal property including *883
money. The General Assembly shall have the power to classify property including money for taxation, and to adopt different rates and different methods for different classes of such property." It was many times in effect held, in construing the language of the old Constitution, that a tax levied upon occupations is not a tax upon property within the ad valorem and uniformity clause of that instrument, and that therefore the levy of occupational taxes was not subject to the uniformity rule, other than the requirement that all taxes must be uniform upon the same class of subjects. See Wright v. Hirsch,
It is true that this court has held in Wright v. Hirsch,
The reasoning in the case just mentioned is illuminated by what was said by this court in Singer Mfg. Co. v. Wright,
Doubtless it is true, as said in McGhee v. State,
But even if it could be said, as contended by counsel for the plaintiff in error, that the limitation upon the right to exercise the power of classification to unincorporated areas of a county constituted in itself a legislative classification of all businesses into incorporated and unincorporated areas, even then such attempted legislative classification would be invalid, for the reason that it is clearly territorial in that it undertakes to classify, not specific businesses, but all businesses of whatever kind or character, according *887 only to whether they operate inside or outside incorporated towns or cities. It has not classified a particular business at all. It is therefore impossible to determine, as was determined in theWright v. Hirsch and the Guerry v. Harrison cases, whether such a classification is reasonable or not. Under theHirsch decision, a classification of a particular business might or might not be. What was said in the majority opinion of that case, to wit, that the classification there was notterritorial (as the minority opinion considered it to be), cannot possibly be said to be true in this case. Such constitutes the only classification there is. The county authorities are bound at the outset to keep hands off all businesses lying within incorporated areas. Specific businesses (such as are dealt with in all of the cases cited by counsel for the plaintiff in error) are not even mentioned here; and the court said inWright v. Hirsch that it was only because the classification dealt with a specific occupation that such classification was not purely territorial in character, and therefore invalid. Here the classification relied on to uphold the tax, if it can be considered a classification at all, is territorial and nothing but territorial. This cannot, under any authority cited, constitute a valid mode of classification.
3. Under the foregoing rulings, which deal only with one of the attacks made on the validity of the act, the court did not err in overruling the county's demurrer to the petition, or in sustaining the demurrer to the county's answer, insofar as the order relates to the specific grounds herein dealt with; the rulings on the specific points indicated being the only judgments made or included in this opinion.
Judgment affirmed. All the Justices concur, except Duckworth,P. J., who concurs in the ruling in the first division of theopinion, but dissents from the ruling in the second division, andfrom the judgment; and Wyatt, J., who took no part in theconsideration or decision of this case.
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