124 Ga. 581 | Ga. | 1906
Lead Opinion
(After stating the facts.)
' It is contended, however, that this ordinance was a valid exercise ■of the police power conferred upon the municipality by section 32 ■of the charter. A similar contention was unsuccessfully made in Henderson v. Heyward, 109 Ga. 373, which involved the validity of. an ordinance of the City of Cartersville, which undertook to make :it penal for one who had lawfully purchased, without the limits of
Another of the sections of the city charter invoked to sustain the validity of the ordinance is section 48, the language of which is as ^follows: “That said mayor and council shall, in the exercise of their police powers, have full power and authority to pass such -ordinances as they may think proper to more effectually prohibit the •illegal sale of spirituous, vinous, malt, or intoxicating liquors within ■the corporate limits of the city of Lawrenceville, and to that end may provide ordinances punishing any person or persons keeping in 'said city spirituous, vinous, malt, or intoxicating liquors for-illegal ¡sale.” The contention that this section of the city charter conferred upon the municipal authorities power and authority to pass the ordinance in question scarcely deserves serious discussion. The •ordinance does not deal with the sale of intoxicating liquors within 'the limits of the city, nor with the keeping, in the city, of such liquors for sale. It is admitted that the sale of such liquors within •the City of Lawrenceville, or elsewhere in the county of Gwinnett, -is prohibited by law; and the manifest purpose of the ordinance, ■construed as an effort to exercise the police power, was to prevent the delivery in Lawrenceville of liquors lawfully purchased outside ■of Gwinnett county.
The other sections of the municipal charter which are invoked to support the ordinance are sections 28 and 30; and here the effort is to uphold the ordinance as a valid exercise of the power of the municipal authorities to impose, and enforce the payment of, license taxes upon any business, profession, or vocation carried on within the city. The first of these sections provides, “That said mayor and council shall have full power and authority to require any person,” etc., “engaged in or carrying on, or. who may engage in or carry on, any trade, business, calling, vocation, or profession within the corporate limits of said city, . . 'to obthin license to carry on such business or profession and pay for such . . license such amount as the mayor and council may by ordinance prescribe.” It also provides that, “Said mayor and council may provide by ordinance for the punishment” of any one “required to pay such license, who [engages] in or [offers] to engage in such business or occupation before paying such tax, or taking out such license. Section 30 confers upon the municipal authorities power to license billiard tables,
■ The express company, however, contends that even if the municipal ordinance in question be invalid, it can elect to obey it, and refuse to accept, at its office in the City of Atlanta, shipments of intoxicating liquors consigned to the owners thereof at' Lawrenceville. As was said by Mr. Justice Little, in Southern Express Company v. State, 107 Ga. 670, 672, “The plaintiff in error'is a common carrier, and as such is bound to receive and transport articles and property offered it for shipment under reasonable rules and regulations. In the case of Fears v. State, 102 Ga. 274, this court held that notwithstanding the local option liquor law was in force in a particular county, a right of property in spirituous and malt liquors existed in tliat county. Being property, it was, under existing law, the duty of a common carrier to receive and transport it for a reasonable hire, according to the direction of the owner or sender of the same, unless such transportation has been prohibited by the lawmaking power. . . The lawmaking power of this State has not yet seen
The court below did not err in granting the mandamus absolute, ¡and the judgment complained of is
Affirmed.
Concurrence Opinion
I concur in the judgment, but can not agree to all 'of the reasoning of the Chief Justice. I do not think that the •ordinance in question seeks to tax merely the act of delivering ¡articles mentioned in the ordinance. It seems to me that a proper •construction of the ordinance is that an occupation tax is levied ~upon persons engaged in the business of carriers, who in that capacity transport into the City of Lawrenceville and there deliver ¡articles of the character mentioned in the ordinance. It is true that the ordinance declares it to be unlawful “to deliver or cause to be delivered” the articles of the character mentioned; but I do not think that the word “deliver” there is to be construed in its limited •sense, the mere final act of transportation, but the, ordinance construed as a whole is an effort to impose an occupation tax upon all persons ¡engaged in the business of transporting intoxicating liquors into the City of Lawrenceville.
I fully concur with what has been said by the Chief Justice as to the ordinance not being justified under the police power. The ordinance not being authorized under the police power, it is therefore to be determined whether it can be justified under the taxing power. The charter of the City of Lawrenceville in broad terms authorizes the imposition of an occupation tax upon persons engaged in business in that city. The authority to impose an occupation tax carries with it the authority to classify the occupations for taxation. City Council of Augusta v. Clark, 124 Ga. 254. In exercising the power of classification the city authorities must, however, be reasonable, and an arbitrary or unreasonable classification will not be per
In my opinion, it is immaterial whether the ordinance in question is valid or not. The Southern Express Company is a common carrier, and, regardless of the ordinance of the City of Lawrenceville, it must accept the liquor, carry it to its destination* and deliver it to the consignee. This being expressly held by the. opinion of the Chief Justice, I think that it will be proper to deal with the validity of the ordinance in question only when it is properly brought in question by the party who, under its provisions, is. required to pay the license fee. _