184 Ga. 275 | Ga. | 1937
Wofford Oil Company maintained a bulk ox wholesale plant fox petroleum products in the City of Douglas, from which it distributed such products to its customers in the surrounding territory. One of its customers ran a retail filling-station in the Town of Willacoochee in a neighboring county. The mayor and council of Willacoochee passed an ordinance levying an occupation tax for the year 1935 on “oil or gasoline, or wholesale dealers in, $50.” The Wofford Oil Company during 1935, upon receipt from its customer in Willacoochee of an order over the telephone or through the mails for an amount of such products, would deliver the same to him in that town by means of its motor-truck. Thereupon the authorities of the town sought to enforce the provisions of the ordinance against the com
Where a municipality is simply given the power to impose a license tax upon a business, it can not divide such business into its constituent elements, parts, or incidents, and levy a separate tax on each or any eleinent, part, or incident thereof. Wofford Oil Co. v. Boston, 170 Ga. 624 (154 S. E. 145); City of Colquitt v. Jeffords Oil Co., 170 Ga. 605 (154 S. E. 140); Wofford Oil Co. v. Pitts, 178 Ga. 339 (173 S. E. 384). Under these decisions the ordinance involved in the present case was not applicable to the delivery of petroleum products by the plaintiff, in the manner shown, to its customer in the Town of Willachoochee. See also Kimmel v. Americus, 105 Ga. 694 (31 S. E. 623); Hofmayer v. Blakely, 116 Ga. 777 (43 S. E. 69); Hewin v. Atlanta, 121 Ga. 723 (49 S. E. 765, 67 L. R. A. 795, 2 Ann. Cas. 296); Southern Express Co. v. Rose, 124 Ga. 581 (53 S. E. 185, 5 L. R. A. (N. S.) 619); City of LaGrange v. Whitley, 180 Ga. 805 (180 S. E. 823).
The plaintiff’s remedy was by injunction. The levy of an execution and the interposition of an affidavit of illegality would not lie in this case, as the charter of the town does not make any provision therefor. See City of Atlanta v. Jacobs, 125 Ga. 523 (54 S. E. 534); Wilson v. Eatonton, 180 Ga. 598 (180 S. E. 227).
It does not appear that the plaintiff was making both sales and deliveries in the Town of Willacoochee, and was therefore subject to the tax for that reason. Wofford Oil Co. v. Dahlonega, 178 Ga. 337 (173 S. E. 85); Cochran v. Pills, 47 Ga. App. 709 (171 S. E. 312).
The judge erred in directing the verdict.
Judgment reversed.