175 Ga. 764 | Ga. | 1932
Lead Opinion
Milliron is one of a number of petitioners who bled a petition praying that the court restrain the collection of certain taxes imposed by the terms of section 17 of the general tax act of 1927 (Ga. L. 1927, p. 62). The petition alleges that the defendants, William B. Harrison, comptroller-general, W. S. Richardson, tax-collector, et al., are threatening to proceed with the collection of this occupation tax from petitioners, all of whom are engaged in the operation of garages for the purpose of repairing automobiles or storing automobiles. It is alleged that under the provisions of title II, paragraph 17, of the general tax act of 1929 [1927] a tax of $75 is imposed upon each person, firm, or corporation carrying on the business of operating garages, either for storage or repairing automobiles in cities of more than 35,000 inhabitants; $50 in cities between 20,000 and 35,000 inhabitants; $25 in cities between 10,000 and 20,000 inhabitants; $15 in cities and towns between 1,000 and 10,000 inhabitants;.and $5 in cities and towns of less than 1,000 inhabitants. Persons operating garages within one mile of the limits of all incorporated cities are taxed $5. Upon an interlocutory hearing the judge of the superior court dismissed the petition upon demurrers, alleging that (1) the petition sets out no cause of action, and (2) there is no equity in the bill, and under the allegations in the petition it appears as a matter of law that plaintiffs are not entitled to any of the relief for which they pray.
It is further insisted that the above-quoted section of the general tax-act is void as being contrary to the equal-protection clause of the 14th amendment to the constitution of the United States, in that it denies to persons within its jurisdiction the equal protection of the laws; this for the reason, as asserted, that this section of the tax act, as construed by the defendants, draws an arbitrary and unreasonable distinction between a person, firm, or corporation operating a garage in a city and one being operated outside the limits of the city, in that those operating in the city pay a tax and those outside are exempt from taxation under the act. It is also contended that the act in question violates section 1 of the 14th amendment of the constitution of the United States, which provides that “No State shall make or enforce any law which shall abridge tlie privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law;” that this law deprives petitioners of their property without due process of law, and abridges the privileges and immunities of petitioners as citizens of the United States, in that said law, as construed by the defendants, takes from each of the garage owners herein named $75 per annum, and grants to others operating exactly the same kind of business an exemption from taxation; that the principle of uniformity which is made applicable to all subjects of taxation by the uniformity clause of the constitution of this State demands that the tax at
By reference to the tax act which we have quoted it will be seen that all operators of garages, as defined in the act, doing business in any city or town 'in this State, no matter how large, and unless such city or town has less than 1,000 inhabitants, are subject to occupation taxes. Likewise, all who are engaged in this business within one mile of all of these cities and towns. At the same time it will be observed that no occupation tax is imposed upon any person engaged in the business of operating a garage for storage or repair of automobiles in the large area of unincorporated territory in this State, and who is more than one mile distant from any incorporated town or city. So the question which is squarely presented is whether the classification which exempts from taxation country garages is so arbitrary and unreasonable as to bring this provision of the tax act into conflict with the provisions of either the constitution of Georgia of 1877 or the 14th amendment to the constitution of the United States. If so, it would of course be our duty to declare the legislative enactment upon this point void. Pretermitting any discussion of the two well-settled principles, (1) that if there be doubt as to the constitutionality of an act the doubt shall be resolved in favor of its constitutionality, and (2) that all laws imposing taxes are to be liberally construed in favor of the taxpayer, we are of the opinion that the mere exclusion from the class of operators of garages generally of those engaged in that business in rural districts is neither arbitrary nor unreasonable. It is uniformly admitted by all the authorities that the right of classification also includes the right of subdivision in the classification. Therefore, if a subdivision be based upon sound and solvent reasons, instead of being arbitrary or capricious, there is no violation of the constitutional principle with which we are now concerned. One who operates and conducts a gainful business or occupation in a large center of population has many advantages, of various kinds, over one who may endeavor to increase his income by dealings with chance passersby in a country thinly settled in population and remote from the paths of traffic which they are wont to pursue, who
So we are of the opinion that the court did not err in dismissing the petition on demurrer.
Judgment affirmed.
Dissenting Opinion
dissenting. The tax in question is based on paragraph 17 of the general tax act of 1927 (Acts 1927,