85 Ga. 649 | Ga. | 1890
On the 16th of December, 1889, the comptroller-general issued an execution against each of two railroad companies, basing it on the act approved November 12th, 1889 (Acts 1889, p. 34), for $300.00 as the license tax of the company for the year 1889, assessed against it for pulling over its road sleeping-cars upon which taxes had not been paid, and the further sum of $500.00 as a penalty for failing to return and pay said tax. These executions being levied, the judge of the superior court, upon the joint petition of the two companies, granted a temporary injunction restraining the enforcement and collection of the same. The grounds for injunction taken in the petition were: (1) that the act of 1889 is unconstitutional, because retroactive; (2) that it is void because not imposing a tax upon business or property, tmt a penalty for the failure, not of the petitioners, but of other persons to give in and pay taxes upon sleeping-cars, the hauling of which cars was, under the law, a duty required of the petitioners; (3) that it is void for conflict with the constitution of the United States, because the sleeping-cars in question were engaged in the conduct of interstate commerce, and the hauling of them was done in carrying on such •commerce and not otherwise, the passengers canned being in the act of traveling through the State of Georgia, from one State on its borders to another.
These questions are less easy of decision than an- ' other which arises upon the face of the act, and which, though directly involved, has not been formally made or discussed. It is manifest that the executions issued prematurely, the language of the act as to default and execution being, that “ if any railroad company shall fail to pay the license herein provided for on or before the first day of October in each year,- the comptroller-general shall issue execution against such defaulting