163 Ga. 570 | Ga. | 1927
Lead Opinion
(After stating the foregoing facts.) The plaintiffs brought a petition against the City of LaGrange, to enjoin the collection of a certain license or business tax against peddlers, peddling on the streets of the City of LaGrange, from house to house, merchandise or articles of any description, for the year 1926, of $200 per annum. The petition alleges that the plaintiffs had paid the special tax of $50 under the general tax act passed at the extraordinary session of the General Assembly of 1923. The petition, which was sworn to, alleged that plaintiffs did make a house-to-house canvass in Troup County, taking orders for the sale of goods and making deliveries at the time of taking the orders, at which time partial payments for the goods thus delivered were paid, etc. Thus it will appear that plaintiffs were peddlers within the meaning of the ordinance passed by the City of La-Grange, imposing a tax of $200 on peddlers within the city. The ordinance is attacked on various grounds which are set out in the foregoing statement of facts; among others that it is excessive, unreasonable, discriminatory, and confiscatory, and therefore void. The case was submitted to the trial judge at the interlocutory hearing on the sworn petition for the plaintiffs, and affidavits introduced by the defendants from numerous residents of LaGrange, who testified that they were familiar with the kind of business in which the plaintiffs were engaged, and that from their knowledge of the business they should make a net profit from such business of from $2,500 to $4,000 a year. After hearing this evidence the trial judge refused to grant the injunction prayed for.
The burden of proving an ordinance unreasonable is on the party attacking it. Ray v. Tallapoosa, 142 Ga. 799 (3), 800 (83 S. E. 938). We are of the opinion that the plaintiffs failed to carry the burden placed upon them by the rule laid down above. The petition, which was sworn to, alleged that, after deducting the expenses of doing business and the cost of the goods, Landham would have a profit of approximately $150 a year. Opposed to this is the testimony of the witnesses above referred to, who placed the profits of the plaintiffs in error at from $2,500 to $4,000 per year. So we can not say, under this evidence which the trial judge
The plaintiffs predicate their attack on the ordinance in question on the ruling in the case of Huguley-McCulloh Auto Co. v. LaGrange, 159 Ga. 352 (125 S. E. 799), where this court held: “A municipal ordinance of the City of LaGrange, imposing upon itinerant automobile dealers having no place of business in that city paying open door license, and at which stock subject to taxation is carried, an occupation tax in the sum of $200, is void, because, under the facts of this case, it imposes an unreasonable, excessive, and prohibitive tax.” The facts in the Huguley case were different from the facts in the present case. There the uncontradicted evidence was that the approximate profits did not exceed $500 after payment of all expenses and losses. So we reach the conclusion, under the facts of this case, that the trial judge did not err in refusing the temporary injunction.
Judgment affirmed.
Dissenting Opinion
dissenting. E. C. Landham is engaged in the business of merchandising in Anniston, Alabama. He sells floor coverings, draperies, and housefurnishing goods by retail. J. D. Anderson is a salesman for Landham in Troup County of this State. About every two weeks Anderson loads a truck with merchandise in Anniston, and drives to Troup. County, and in that county makes a house-to-house canvass, takes orders for the sale of goods, and makes deliveries at the time of taking such orders. At the time he takes an order for goods a partial payment is made thereon, and the purchaser enters into a contract for subsequent payments upon the purchase-price of the goods purchased. Anderson had paid the special license tax imposed upon peddlers in said county under the general tax act of 1923. The City of LaGrange, by an ordinance passed on December 18, 1925, imposes an occupation tax of $200 on “peddlers peddling on the streets from house
It is to be conceded that the presumption is always in favor of the reasonableness of an occupation tax, and the burden is upon persons complaining of its unreasonableness to establish the fact that it is unreasonable or prohibitive. The State imposes an occupation tax of $50 upon peddlers in each county where they engage in business. Acts Extraordinary Session 1923, p. 47. Counties impose a tax of $50 upon peddlers doing business therein. Civil Code (1910), § 530. In determining whether the occupation tax imposed by this ordinance upon peddlers is reasonable, we should take into consideration the occupation taxes imposed by the State and counties upon this business. Huguley-McCulloh Auto Co. v. LaGrange, supra. According to the evidence intro