185 Ga. 720 | Ga. | 1938
Walnut Transfer and Storage Company and others, engaged in the business of hauling goods for hire within the incorporated limits of the City of Atlanta and its environs, brought a petition against the State Eevenue Commission of Georgia, and Marcus P. McWhorter as Director of the Motor-Yehicle Division thereof. The petition, so far as here material, set forth substantially the following allegations and contentions: Petitioners are the owners and operators of numerous trucks. Before becoming engaged in business petitioners applied to the City of Atlanta for licenses to operate said trucks, and upon obtaining a license paid certain sums to the city as a franchise or occupational tax, and began to operate their trucks in accordance with said permit or license. Thereafter, during the 1937 session of the General Assembly, an act providing for the levy of a maintenance tax “to be paid by owners of motor-buses, trucks, and/or trailers operating over the public roads of this State,” was passed and duly approved by the Governor. Owners of vehicles therein defined are required to register such vehicles with the Director of the Motor-Yehicle Division of the State Eevenue Commission, setting forth the correct factory weight of such vehicles. The tax is measured according to the weight of the vehicles, and is in addition “to any and all other taxes, license, or registration fees now required under existing laws.” Section 13 of the act makes a violation of the terms of the act a misdemeanor. Section 15 declares “that the State agency having the duty to collect the taxes herein provided for is authorized and empowered to furnish to its employees collecting or enforcing said taxes such weighing devices as necessary to enforce this act, and all persons employed to enforce this act are hereby authorized to stop and/or weigh any truck and/or trailer and/or bus, using any public road of this State.” Petitioners contend that-under the provisions of section 1 of the act they are exempt from the operation thereof. They attack the constitutionality of the act on various grounds, and allege, “that, despite the exception applying to petitioners in said act, the State Eevenue Commission, its officers, agents, and employees have appeared at the places of business of these petitioners and have insisted that .petitioners come within the provisions of the said act, and have threatened petitioners and all of their agents and employees with arrest and imprisonment, and have threatened
The defendants interposed a demurrer on the grounds that the petition sets forth no cause of action; that its allegations are insufficient to authorize or justify the relief prayed for or any part thereof; that there is no equity in it; and that the petitioners have an adequate remedy at law. The court sustained the general demurrer, holding that the petitioners are not exempt from the operation of the act, and that the act is not unconstitutional for any reason assigned, To this judgment the petitioners excepted.
It may be said, however, that the petitioners seek to enjoin acts other than those relating to the criminal feature of the enforcement of the statute. It is alleged that the defendants “have insisted upon the weighing of said trucks.” Construed most strongly against the pleader, as must be done on general demurrer, and upon application of the rule that the writ of injunction should n<?t issue except in clear cases (Cathcart Van & Storage Co. v. Atlanta, 169 Ga. 791, 793, 151 S. E. 489), this allegation is insufficient to show that the defendants are actually stopping and weighing the trucks of the plaintiffs; and even so, in this particular the case would fall within the ruling in Georgia Railway and Electric Co. v. Oakland City, supra, where it was sought to enjoin enforcement of an alleged illegal ordinance requiring the plaintiff, a street-railway company, to stop its cars at certain designated places in the city. It was said: “There was no effort to take away property or property rights, or to destroy or substantially impair a franchise. . . It was not shown that any irreparable injury would result; but at most a small interference with the schedules which the company desired to maintain.” Eeference is also made in the petition to a seizure of the plaintiffs’ property. In the absence of a contrary allegation it will not be assumed by this court that the defendants will make a seizure of the plaintiffs’ property otherwise than through a levy pursuant to the issurance of an execution for the collection of the tax and the penalty. In this event the plaintiffs would have an adequate remedy at law by affidavit of illegality, under section 80 of the reorganization act (Ga. L. 1931, pp. 33, 34; Code, § 92-7301). Whiddon v. State Revenue Commission, 184 Ga. 453 (2) (191 S. E. 438); Hicks v. Stewart Oil Co., 182 Ga. 654 (4) (186 S. E. 802). It is apparent from what has been said that the allegations of the petition in the instant case are insufficient to bring the case within the so-called exception to the general rule that injunction will not issue to restrain a criminal prosecution. In this view of the ease it is not necessary to pass upon whether or not the petition failed to state a cause of action for the reasons given by the trial court, and the plaintiff will not be concluded on such questions.
Judgment affirmed.