Lead Opinion
A motion for a rehearing having been granted in this case, upon reconsideration of the questions raised, the court has reached the opinion that paragraph 66 of section 2 of the general tax act of 1927, as amended in 1929, imposing an occupation tax on manufacturers of and dealers in lumber and lumber products, is so vague and indefinite as to be unenforceable as to manufacturers of or dealers in lumber products, but is not void in so far as it affects manufacturers of or dealers in lumber; and the judgment of the court below, granting an injunction, should be modified in accordance with this ruling.
The court is of the opinion that the act in question is not unconstitutional on the ground that there was no reasonable basis for the classification which' put a specified tax upon a dealer in or near a city of a certain size and a different tax upon a dealer near a city having a different population.
Judgment affirmed in part and reversed in part.
Dissenting Opinion
dissenting. Case-Fowler Lumber Company, and others joined as plaintiffs, brought a petition seeking an injunction against TJ. T. Winslett, the tax-collector of Bibb County, and W. B. Harrison, the comptroller-general of tlie State of Georgia, to prevent the collection by them of a certain occupation tax prescribed by paragraph 66 of section 2 of the general tax act of 1927, as amended in 1929, which reads as follows: “Par. 66. Lumber Dealers. Upon every person, firm, or corporation engaged in the manufacture of lumber products of any character or dealing in lumber or lumber products, whether for themselves or as agents or brokers, in or near cities of 1,000 inhabitants and not more than 10,000, $10.00; in or near cities of more than 10,000 and not more than 20,000 inhabitants, $50.00; in or near cities of more than 20,000 inhabitants, $100.00 for each place of business. Provided, the word ‘near/ as used in this section, is defined to mean within a radius of three miles of the incorporate limits of the cities and/or towns in this paragraph referred to.” The defendants filed general and special demurrers to the petition, and also their answer. The demurrers were overruled. At the interlocutory hearing evidence was introduced by plaintiffs and defendants; and after a consideration of the cause the court granted an interlocutory injunction against the defendants, restraining them from collecting the tax provided by the section of the tax act above quoted. The defendants excepted to the judgment overruling the demurrers to the petition and to the order granting an injunction.
It is contended by the defendants in error, who were the plaintiffs in the court below, that there is no reasonable basis for classifying manufacturers of lumber products and dealers in lumber and lumber products according to the size of the city in which or near which they operate, so as to assess a larger tax in the larger cities, or within the radius specified in the statute, and a smaller tax in the smaller cities. They insist that while in some kinds of business such a classification may be justified, it can not be sus
From what is said above it will be seen that I concur in what is held by the majority in the second division of the decision. But there is another contention made by the defendants in error, which is that if the statute imposing the occupation tax in question is not unconstitutional, it is so uncertain in its terms that it should be regarded as void and unenforceable, and that the court would restrain the enforcement of it. I do not think so, while admitting that the question ig nqt entirely free from difficulty. The main
I will not attempt to state a hard and fast rule or a complete and exact definition of “lumber products.” In the Civil Code, § 4, par. 1, it is declared that “The ordinary signification shall be applied to all words, except words of art, or connected with a particular trade or subject-matter? when they shall have the
I am authorized to say that Mr. Justice Hines concurs with me in this dissent.