City of Atlanta v. Jacobs , 125 Ga. 523 ( 1906 )

Evans, J.'

(After stating the facts.) 1. Our first inquiry will be directed to the validity of the ordinance by virtue of which the City of Atlanta claims the right to collect tire license fee by execution against the defendant in error. The charter of the City of Atlanta confers upon the municipal corporation very broad powers of taxation to raise revenue for the city. Ample as the authority to tax may be, the city, in the exercise of its charter power, can not lawfully impose a tax by the enactment of an oppressive, unreasonable, or discriminatory ordinance. It is well settled that a license tax exacted as a privilege for engaging in a particular vocation, even though the vocation involves the sale of goods, wares, and merchandise, is not a tax upon property, but is a tax upon occupation, business, or employment. Atlanta Nat. Asso. v. Stewart, 109 Ga. 88-89, and cit. And it is not a valid objection to an ordinance requiring a license tax for conducting a named business that another business or occupation is not taxed, or is taxed a different amount. Weaver v. State, 89 Ga. 642. While the charter of the City of Atlanta confers the power “to classify business, trades, and professions carried on in said city, into such classes of subjects for taxation as may be just and proper,” and also to “make a just and proper classification of business for taxation” (Anderson’s Code of Atlanta, §§64, 65, 250), still, when the classification is made, it must operate alike on all persons and property belonging to such class. An ordinance which imposes a tax on non-resident traders without imposing a like tax on resident traders of the same class is discriminatory and void. Gould v. Atlanta, 55 Ga. 678. Would it be any the less discriminatory in scope or effect to impose a tax upon dealers in articles manufactured beyond the limits of the city and exempt the same class of articles manufactured, in the city ? In discussing the validity of the act imposing a tax on dealers in sewing-machines, this court recognized the principle that it was not a proper classification to tax dealers in articles made in one place and exempt dealers in the same class of articles from taxation if the article was manufactured in another place. The court, in upholding the validity of the law imposing the tax, said: “The tax is imposed upon the business of selling or dealing in sewing-machines in this State, irrespective of the State or country in which the machines are manufactured.” Weaver v. State, supra. See, also Singer Mfg. Co. v. Wright, 97 Ga. 123, In Davis v. Macon, 64 Ga. 128, the ordinance contained this provision: “Each person or firm (farmers selling their own produce excepted) retailing fresh or butcher’s meat in the city, whether from stalls, stores, or by peddling the same on the streets, shall pay a license of $50.00.” Its validity was attacked because it exempted from its operation farmers selling their own produce, but the ordinance was held to be valid against this objection, because the farmer, in the sale of his produce, which was only occasional and incidental to his calling, was not engaged in a separate and distinct business which was taxed by the ordinance. It can not be disputed that any attempt by a State to discriminate in its tax laws in favor of the property of its own citizens against the property of citizens of other States would be obnoxious to the constitution of the United States. Nor can the authority of the city in this respect be greater than the authority of the State. If the ordinance had in terms provided that a dealer in salvage from fires and wrecks occurring beyond the limits of the State should be taxed, while another dealer in salvage from fires and wrecks in the City of Atlanta should be exempt, the invalidity of the tax would be too apparent to admit of dispute. ■ And yet, under this ordinance, a fire or wreck sale of merchandise is taxed if the fire or wreck occurred in another State, but the same kind of a sale is exempt from taxation if the salvage was from an Atlanta casualty. It is to be observed that the ordinance not only exempts the owner of the salvage at the time of the fire or wreck, but all persons engaged in conducting a sale of this kind where the subject-matter of the sale is salvage from an Atlanta fire or wreck. The ordinance undertakes to discriminate in favor of a particular species of property solely because of its location at a particular time. It is manifestly discriminatory, and for that reason invalid.

2. The remaining question is whether injunction is the proper remedy to prevent the enforcement of a tax imposed by this invalid ordinance. The general rule is that there should be no judicial interference with the collection of taxes. The Political Code, §926, which embodies this principle, has been held to be applicable to taxes due the State, and not to taxes imposed by counties or municipal corporations. Vanover v. Davis, 27 Ga. 354; White v. State, 51 Ga. 254; Herrington v. Tolbert, 110 Ga. 532. But this is not even an effort on the part of the City of Atlanta to collect a tax; the ordinance by virtue of which the execution issued was void, and therefore there was no law authorizing the imposition of a tax. It was- no tax, and any effort on the part of the city through its officers to enforce its collection would be nothing more than a trespass upon the property of one of its citizens. Hewin v. Atlanta, 121 Ga. 737. Where a municipal officer is attempting to collect money out of a person under the forms of law but without any valid law to ¿uthorize the process he uses and calls an execution for taxes, it is the duty of the courts, in a proper case made, to arrest the proceeding in some of the modes known to the law, and afford relief to the party justly complaining. Southwestern Railroad v. Wright, 68 Ga. 311. If this relief can be afforded through legal remedies, equity will not interfere by injunction. The only remedy at law, under our system of jurisprudence, which has been provided for the arresting of process by the person against whom it is directed is by affidavit of illegality. The remedy bjr illegality^ is purely statutory, and is only available in those instances and under those circumstances provided by law. State v. Sallade, 111 Ga. 702. The general statutes embodied in the Civil Code, §4736 et seq., providing for an illegality proceeding as a means for arresting an illegal levy, are confined to executions based upon judgments rendered by the courts. Manning v. Phillips, 65 Ga. 550. Neither the charter of the City of Atlanta nor any provision of the general law authorizes the testing of the validity of a tax execution by illegality. The execution in this case was issued by the clerk of. the council and was made returnable to him. There is no provision of law for the return into court of such an execution in order that its validity may be attacked by illegality. Indeed it is conceded, in the answer of the defendant, that there is no provision of law for testing the validity of the execution by affidavit of illegality. Where this remedy is not provided by statute, injunction is the proper remedy. Goldsmith v. Georgia R. Co., 62 Ga. 485; Wright v. Southwestern R. Co., 64 Ga. 783. It is insisted that the defendant in execution might have paid the tax, under protest, into the treasury of the city, and then have instituted - a suit to recover the money on the ground that it was illegally exacted from him. We do not think, however, that the law makes this unusual demand of the citizen. When the only authority for the levy of a tax execution is an invalid municipal ordinance, the person against whom the execution is issued is not compelled to pay it and then resort to the courts in order to get his money back, but he may, by an appropriate action, contest with the municipality its right to enforce the collection of the tax; and if no remedy at law be provided for making this contest, he may appeal to equity to restrain by injunction the illegal attempt to enforce payment of the execution.

Judgment affirmed.

All the Justices concur.