181 Ga. 397 | Ga. | 1935
It appears from the record that the petitioner is not maintaining a plant within the City of Gainesville, but obtains business from that city through its truck-driver whom it sends from Athens. He is provided with a supply of fresh linens which have been laundered at petitioner’s plant in Atlanta, operating as the Atlanta Linen Supply Company. Its business is not to sell merchandise, but to sell the right to use certain laundered articles. When the driver proceeds to Gainesville he is not provided with any tangible thing which is to be offered for sale or to be delivered on any previous order for merchandise. Preparations are made in Atlanta for the operation which is to be performed in Gainesville. The driver exacts from the customer in Gainesville, as a condition for providing him with á given number of freshly laundered linens, coats, uniforms, or the like, an equal number of such articles which have become soiled through use. It may be reasonably inferred that the initial service is performed by delivering the requisite linens on a memorandum charge, but not as a sale of merchandise, the customer to pay only for the use of such articles. Thereafter the process, as detailed by the secretary and treasurer of the petitioner, is: “We make an even exchange; we deliver a customer linens and pick up his soiled linens. When we get his soiled linens we deliver his clean linens at the same time.”
Is the tax prohibitory, confiscatory, and void, as contended by the plaintiff ? It appears that in Gainesville the linen-supply business is generally conducted in connection with laundry work, the petitioner being the only one 'dealing exclusively in linen-supply service. The testimony of the proprietors of the only two laundries in that- city is that it is the most profitable and desirable part of the business, and that it has been steadily increasing even during the period generally referred to as “the depression.55 The petitioner showed various items of expense incurred by it as against its total receipts, including excess depreciation of linens because of being used at a distant point from its plant, excess salary of driver, and excess truck expense because of the mileage to Gaines-ville, and other items which obviously could be reduced if the ex
The evidence shows that while two laundries in Gainesville were subject to the tax of $150 each, the Bay Way Steam Laundry owed the city a balance of $15, and the Gainesville Steam Laundry owed a balance of $26, on the occupational tax for the year 1933. There is, however, no evidence of any act on the part of the city showing an intention to waive or remit the balance due in each case. Nothing has been paid by the petitioner. No fi. fa. has been issued against either of the two Gainesville laundries, although a fi. fa. was issued and a levy made upon a truck belonging to the petitioner; but the record discloses that such proceedings against the petitioner were at the special instance and request of its counsel, in order that a test case might be made as to the legality of the ordinance in' question. Under these circumstances it can not be said, as contended by the plaintiff, that the ordinance, because of the manner of enforcement, is discriminatory and void and in violation of art. 1, sec. 1, par. 2, and art. 7, sec. 2, of the
It is also urged by the plaintiff that the ordinance is void because it attempts to tax a part and parcel of its business, to wit, the solicitation of linens-supply service which, it is claimed, is the only kind of business it conducts in Gainesville. While we recognize the principle of law thus invoked, it has no application in the present case, because, as shown in the first division of this opinion, the business conducted in Gainesville consisted in the operation of a linens-supply service, of which the solicitation is but a part and not exclusively or specially taxed. In other words, under sec. 41 of the ordinance in question, the petitioner was subject to the tax for operating in Gainesville a linens-supply service, and was not called on to pay any additional tax for the incidental and preliminary operation of soliciting such business.
Headnote 4 need not be elaborated.
Judgment affirmed.