Forrester v. Edwards , 192 Ga. 529 ( 1941 )

1. The act approved February 16, 1938 (Ga. L. Ex. Sess. 1937-1938, pp. 180-183), taxing rolling-stores, does not violate the uniformity requirement of the constitution (article 7, section 2, paragraph 1; Code, § 2-5001), because of the provisions of section 4 exempting from its operation vehicles used exclusively for the sale and delivery of ice, coal, dairy products, including cheese and ice cream, soft drinks, malt beverages, furniture, petroleum and its products, tobacco and its products, farm products (when sold by the producer), bread or other bakery products, nuts, potato chips, sandwiches, and meats derived from animal products.

2. A ground of an affidavit of illegality attacking the above act because it offends the due-process provision of the State constitution (Code, § 2-103), which alleges no specific facts, but as amended consists entirely of mere conclusions, presents no defense to an execution issued for taxes under the act.

No. 13796. JULY 8, 1941. On July 7, 1939, T. Grady Head, as commissioner of revenue for the State of Georgia, issued an execution against W. J. Edwards of Evans County for the principal sum of $200 for rolling-store tax for operating two rolling-stores for the year 1939, as provided by an act of the General Assembly approved February 16, 1938 (Ga. L. 1937-1938, p. 180). On March 8, 1941, his successor as commissioner, J. M. Forrester, was made party plaintiff in the trial court. On October 3, 1940, the foregoing execution was levied upon a described tract of land as the property of W. J. Edwards. The defendant Edwards filed his affidavit of illegality, containing six paragraphs or grounds, all of which except paragraphs 2 and 3 were stricken on demurrer. Paragraph 2 was as follows: "Because in said act it is provided that all persons engaged in the operation of rolling-stores in the State of Georgia for the retail sale of ice, coal, dairy products, including cheese and ice cream, soft drinks, hard beverages, furniture, petroleum and its products, tobacco and its products, nuts, potato chips, sandwiches, and meats derived from animal products, shall be excluded from the provisions of said act and excused from paying said license tax, while others engaged in the retail sale of such products including other articles of merchandise from rolling-stores are chargeable with the payment of said license. Therefore deponent alleges that said act is discriminatory as not applying alike to all those engaged in the sale of the same articles of merchandise in the same manner and by the same means. Furthermore, said act does not tax rolling-stores as a class of business as a whole, but undertakes to split the business of operation of rolling-stores and exclude all those engaged in selling at retail certain named articles of merchandise, while requiring others engaged in the same business and operating by the same means and in the same manner to pay the license provided in said act. Deponent alleges that such provision or classification is unreasonable, unnatural, and discriminatory, and therefore said act is unconstitutional, being contrary to and violative of article 7, section 2, paragraph 1, of the constitution of the State of Georgia, which provides: `All taxation shall be uniform upon the same class of subjects and ad valorem on all property subject to be taxed within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws."

Paragraph 3 was as follows: "Because said act is unreasonable, unjust, prohibitory, and in its effect destructive of the class of business to which it applies, the income from the operation of a rolling-store not being sufficient to pay the license tax provided for therein and leave any amount whatever as net profit to the owner." Paragraph 3 was subsequently amended by adding the following: "and is therefore violative of section 1, article 1, paragraph 3, of the constitution of the State of Georgia, which provides, `No person shall be deprived of life, liberty, or property without due process of law.'" Objections to the amendment were upon the grounds, that it together with the original constitutes no defense to the execution, and fails to specify the provisions of the rolling-store act alleged to contravene the constitutional provision referred to; that it fails to point out any reason upon which the act is alleged to be unconstitutional; that it fails to set forth any facts to show that the payment of the tax leaves no amount whatever as net profit to the owner, and alleges only conclusions by the pleader; and the amendment itself adds a new ground of illegality by raising a constitutional question without making oath that the defendant did not know of such ground when the original affidavit was filed. The objections were overruled, and the amendment was allowed. The revenue commissioner demurred to the affidavit of illegality as amended, on the grounds that no cause of illegality is set forth, that the affidavit of illegality as amended sets forth no defense to the execution, and that it is insufficient in law to constitute any defense. The demurrer was overruled, and the plaintiff in execution excepted. 1. The first attack upon the statute under which the execution issued is made in paragraph 2, and is based upon the contention that the act fails to meet the uniformity requirement of article 7, section 2, paragraph 1, of the State constitution. Code, § 2-5001. This constitutional provision was amended in 1937, but the portion applicable to the question here, to wit, "All taxation shall be uniform upon the same class of subjects, . . within the territorial limits of the authority levying the tax," remains the same. It is contended that the uniformity required by the constitution is destroyed in the act, because of the exemptions therein provided. The authority of the General Assembly under the constitution before and after the 1937 amendment to classify subjects for taxation can not be successfully challenged. The power thus to classify is subject to the limitation that any classification must be reasonable, natural, and not arbitrary. Mutual Reserve Fund LifeAssociation v. Augusta, 109 Ga. 73, 79 (35 S.E. 71);Featherstone v. Norman, 170 Ga. 370 (153 S.E. 58). InHome Insurance Co. v. Augusta, 50 Ga. 530 (4), where an ordinance was attacked upon the ground that it lacked uniformity in that it imposed different amounts of taxes upon insurance companies, this court held that the ordinance was valid as against the attack made. The subjects for taxation were insurance companies, but this general class was subdivided into fire-insurance companies and life-insurance companies, and for reasons satisfactory to the city authorities enacting the ordinance a license fee of $100 was imposed upon life-insurance companies while a fee of $250 was imposed upon fire-insurance companies. One of the considerations on which this court sustained the ordinance was the fact that the legislative acts of the State, assessing taxes on professions, varied the tax from $10 to ten or twenty times that sum, which had been true of every tax act passed since the uniformity rule had been in the constitution. This court said: "This contemporaneous, unbroken, practical exposition of the meaning of the constitution by all departments of the State government should not be disregarded in the search for the true interpretation of the provisions we are considering. By the light of this and the principles and authorities cited, we conclude that the court below did not err in refusing the injunction prayed for."

In Featherstone v. Norman, supra, this court had for consideration an attack upon the State income-tax statute, and in sustaining the statute against the constitutional attack that it lacked uniformity this court said: "To be uniform under this provision, taxation need not be universal. Certain objects may be made its subjects, and others may be exempted from its operation. Certain occupations may be taxed, and others not; but as between the subjects of taxation in the same class there must be equality. All that the law requires is that classification of persons who are to be exempt shall not be arbitrary and unreasonable." It was there held that the State income-tax statute was not unconstitutional because it exempted incomes under a certain amount, or because it increased the rate as the income increased. See Adams Motor Co. v. Cler, 149 Ga. 818 (102 S.E. 440); Wright v. Hirsch,155 Ga. 229 (116 S.E. 795); Dixie-Ohio Express Co. v. StateRevenue Commission, 186 Ga. 228 (197 S.E. 887); City ofAtlanta v. Georgia Milk Producers Confederation, 187 Ga. 117 (200 S.E. 712). In Home Insurance Co. v. Augusta, supra, the subjects for taxation fell in the general class of insurance companies; but the different classifications were sustained, because the insurance companies were engaged in selling different types of insurance. In the present case all rolling-stores fall in the same general classification, but the subclassification by which certain ones are exempt is founded upon the distinction made by the different goods and types of merchandise which they sell. Therefore the classification in the present act is sustainable upon the same grounds upon which the ordinance in that case was sustained, and the demurrer to this ground of the affidavit of illegality should have been sustained. City ofAtlanta v. Jacobs, 125 Ga. 523 (54 S.E. 534), involved an attack upon an ordinance on the ground that it was discriminatory and void. The ordinance there imposed a license tax on fire or wreck sales of merchandise, but provided that it should not apply if the merchandise was salvaged from fire or wreck in the City of Atlanta. The ordinance was held void because of such discrimination. Obviously the sole basis for classification, which was the place where the fire or wreck occurred, was not a reasonable or natural basis for classification. That decision is clearly distinguished on its facts from the present case. The defendant cites also Gould v. Atlanta, 55 Ga. 678, where this court held that an ordinance taxing non-resident itinerant traders was invalid. The invalidity is apparent when it is observed that the sole basis for making the classification was the residence of the person taxed. Other cases cited by counsel are Cutliff v. Albany, 60 Ga. 597; Mayor c. of Savannah v. Weed, 84 Ga. 683 (11 S.E. 235, 8 L.R.A. 270); SingerMfg. Co. v. Wright, 97 Ga. 114 (25 S.E. 249, 35 L.R.A. 497); American Bakeries Co. v. Griffin, 174 Ga. 115 (162 S.E. 513). They are distinguished on their facts from the instant case.

2. The affidavit of illegality assailed the statute on the ground that it deprived him of property without due process of law, in violation of article 1, section 1, paragraph 3, of the constitution (Code, § 2-103). This ground states no specific facts, but rests solely upon the general assertion of the pleader to the effect that a rolling-store operator can not pay the tax required by this act and have left any net profit. It is not alleged what is the gross or net income of any rolling-store operator. In Bennett v. Public-Service Commission, 160 Ga. 189,192 (127 S.E. 612), it was said: "It is well settled that a demurrer does not admit opinions or conclusions of the pleader. . . Nor does a demurrer admit conclusions of law. . . Nor does a demurrer admit conclusions of fact where the facts are not averred upon which such conclusions are supposed to rest." A demurrer merely admits those facts that are properly pleaded, and a legal conclusion of the pleader does not constitute such a fact. In Coleman v. Coleman, 113 Ga. 149 (38 S.E. 400), where it was sought to set aside a judgment for fraud, it was said: "In order to authorize a court of equity to entertain a petition to set aside a judgment for fraud, the acts claimed to constitute the fraud must be clearly and specifically alleged; and mere general averments that the judgment was obtained by misrepresentation, concealment, and fraud are not sufficient." Where it is sought as in the present case to strike down a solemn enactment of the legislature on the ground that it offends the constitution, the presumption of law is that the act is valid, and to successfully assail it specific facts must be alleged to establish its invalidity. In City of Atlanta v. Johnson,191 Ga. 100 (11 S.E.2d 656), where the property owner sought to avoid a street-improvement assessment on the ground that it constituted a confiscation of her property, this court said: "The plaintiff avers that the action of the city `amounts to confiscation' of her property, but nowhere is the value of her property shown, or the amount of the assessment; and therefore no facts are stated to support the mere conclusion as to confiscation." This rule requiring allegation of specific facts in pleadings rather than mere legal conclusions is again asserted in Butler v. Dublin, 191 Ga. 551 (4) (13 S.E.2d 362), as follows: "It is `one of the fundamental rules of pleading that facts and not legal conclusions must be alleged,' and that mere general conclusions without specific facts on which they are based will constitute no cause of action. Field v. Brantley, 139 Ga. 437 (3), 441 (77 S.E. 559); Jones v. Ezell, 134 Ga. 553 (5), 559 (68 S.E. 303); Furr v. Burns, 124 Ga. 742 (5) (53 S.E. 201)." It is the facts alleged, and not the conclusions, that determine whether or not a cause of action is stated. Compare Great Atlantic Pacific Tea Co. v. Columbus,189 Ga. 458 (2) (6 S.E.2d 320); Higginbotham v. Adams,192 Ga. 203 (14 S.E.2d 856). Therefore ground 3, alleging no facts to support the conclusions therein, was subject to demurrer. The affidavit as amended alleged no defense to the execution, and it was error to overrule the general demurrer. Since under the above ruling ground 3 alleged no valid defense to the execution, neither the original ground nor the amendment alleged any valid defense; and it was error to allow the amendment over the objection interposed.

Judgment reversed. All the Justices concur.