153 Ga. 455 | Ga. | 1922
On June 8, 1980, the Pierpont Manufacturing Company filed in Chatham superior court its petition for injunction against the Mayor and Aldermen of the City of Savannah, and made this case: Petitioner has had and operated for approximately twenty years a manufacturing plant in the County of Chatham, but beyond the limits of the City of Savannah. Petitioner does not have any place 'of business or office, or maintain any agency or agent within the city. Petitioner periodically sends a salesman to the City of Savannah for the purpose of -taking orders for the sale of its goods, but no delivery of its goods is made at the time of taking such orders. The City of Savannah has issued an execution against the petitioner for $100, alleged to be due by it as a manufacturer as a business tax for 1980 under the tax ordinance of said city. The marshal of said city threatens to levy said execution upon the property of petitioner, unless restrained by this court. Petitioner is not indebted to the city on said execution in any sum, and the same is void because of the facts stated. Petitioner has and maintains a deposit in a bank in the City of Savannah, and makes deliveries of goods, previously ordered, within said city by truck, but no deliveries are made at the same time
The defendant at the appearance term demurred generally to this petition, on the ground that the same did not set forth any facts which entitled the plaintiff to any equitable relief, and showed no reason why said tax execution should be enjoined. The demurrer was overruled, and no exception was taken to this judgment. On August 1, 1921; the case came on to be heard before the judge and jury. The plaintiff proved its case as laid in its petition. It
“ Sec. 8. Every person, firm, or corporation transacting or offering to transact any of the kinds of business hereinafter specified and scheduled, or practicing or offering to practice any of the professions or callings hereinafter specified or scheduled, whether in connection with any other business, profession, or calling or not, shall pay the tax hereinafter prescribed and listed and scheduled for every separate place iii which he may transact or offer to transact business, or to engage in or offer to engage in or practice such profession or calling: . . “ Box manufacturers each (paper or wood), not including baskets, one hundred dollars; where baskets included, one hundred and fifty dollars.
“ Sec. 8. Every person, firm, or corporation transacting or offering to transact either of the kinds of business or professions named in this ordinance, who are engaged in such business or professions named on the first day of Januar3r, 1920, shall within thirty days after said date take out the license herein provided for and pay for the same.”
There was no vital variance between the facts set out in the petition and the proof submitted in substantiation of these allegations. The facts that the plaintiff had a telephone listed in its name in the city telephone directory, that it had a box in the Savannah post-office, that the stationery used by it was headed “ Savannah, Ga.,” and that goods delivered by it to its largest customer in the city were paid for on delivery, make no difference in determining its liability for this tax. If the plaintiff was liable for this license tax, it was under the provision of the city tax ordinance of 1930, set out in its petition. If liable to this tax, it was because it maintained a factory, plant, or business without the incorporate limits of the city, but had an office, place of business, or an agent in the city or corporate limits, or made deliveries of its products in the city limits. The petition alleged, that it had a factory, plant, or business without the corporate limits of the city. The proof showed this fact. The petition alleged that the plaintiff had no office, place of business, or agent within the corporate limits. The evidence was uncontradicted that petitioner had no office or place of business in the city. The petition alleged that plaintiff had a salesman, who on Monday in each week, in the city, solicited for it orders for its products. The proof establishes this fact; but shows that this agent resides in Savannah. This agent works most of his time for his company at its plant and elsewhere, without the incorporate limits of the municipality. It is not the residence of the agent, but his presence in the city on the business of the master, which counts. The complaint alleged that the plaintiff made deliveries of its goods in Savannah by truck, to fill these orders taken by its agent in the city. The proof shows this to be true. It makes
None of the other facts, such as the residence of its officers in Savannah, its post-office box in the Savannah post-office, or the listing of its telephone in the city telephone directory, or the heading of its stationery, show that it had an office or place of business in Savannah; and that therefore it was liable for such tax. Under the undisputed facts the plaintiff had no office or place of business in Savannah. The same facts show that it had a salesman who weekly called upon merchants and procured orders for its products, which were delivered by truck to such customers. Under these facts the judgment on the demurrer adjudicated that plaintiff was not liable to the city for this license tax; and, whether right or wrong, this judgment, unexcepted to, is conclusive upon the city; and when the plaintiff proved its ease as laid, and there was no proof traversing or avoiding the same, the court below erred in directing a verdict for the defendant.
Judgment reversed.