Williams v. Mayor of Waynesboro , 152 Ga. 696 ( 1922 )

Hines, J.

(After stating the foregoing facts.)

1. It is insisted by the plaintiff that the Mayor and City Council of Waynesboro is without power to increase a business tax, where, at the beginning of the license year, there is an ordinance in existence fixing the amount of such tax; and that such increase of a business tax by a new ordinance, passed after the beginning of the revenue or license year of the municipality, would in effect be a revocation of the license granted to carry on the particular business for which it was granted. Counsel for plaintiff relies on the ease of Peginis v. Atlanta, 132 Ga. 302 (63 S. E. 857, 35 L. R. A. (N. S.) 716). In that case this court drew a distinction between the collection of a business -tax on occupations which are per se useful and lawful, although the method of imposing such tax is called a license, and the granting of a license, strictly so called, granted under the police power for the regulation and control of certain pursuits. The court said: “ In the former class the tax or charge is imposed for the purpose of collecting revenue; and although the mode of doing so is frequently called licensing, the real purpose is to enforce the collection of the municipal revenue. As to such occupations the municipal authorities are not vested with a discretion to grant or refuse licenses or to revoke such licenses at the will of the grantor.”. This ease is authority for the proposition that a municipal corporation can not revoke a license to conduct a lawful and useful business, where the method of licensing is for the purpose of collecting an occupation tax on such business; but it does not decide that a municipality, having full power of levying occupation taxes, can not change an ordinance in existence at the time its license year begins by passing a new ordinance increasing such occupation tax, where the increased tax is not unreasonable, arbitrary, prohibitive, or confiscatory, especially when such tax had not been paid under the prior ordinance before the passage of the new one. This court has held that “the municipal authorities could change an ordinance imposing a special tax upon a particular class of dealers bj. increasing the rate, after the tax first levied had been paid, but before the expiration of the time for returning and paying the same; and such a change, made between the date of the payment and the time when its collection could have been enforced, was not unlawful.” Mayor etc. of Savannah v. Crawford, 75 Ga. 35.

The principle ruled in that case may be justified upon the ground that a municipality, having full power to levy business taxes, can at any time increase the tax on a particular class of dealers, provided such increase is not arbitrary, prohibitive, confiscatory, or discriminatory, whenever the exigencies of the municipal finances require the increase.

The case of the plaintiff is not so strong as that of the Crawford case, just cited, because he did not pay the license tax for the license year beginning October 1, 1920, before the passage of the ordinance of April 4, 1921. Upon the authority of the Crawford case we do not think that the levy of a larger occupation tax by the ordinance of April 4, 1921, than that fixed by the ordinance in force at beginning of the license year, is unlawful.

2. It is now indisputably established by the decisions of this court that an occupation tax must be reasonable in amount and must not be discriminatory, confiscatory, or prohibitive. Morton v. Macon, 111 Ga. 162 (36 S. E. 627, 50 L. R. A. 485); Mayor etc. of Savannah v. Cooper, 131 Ga. 670 (63 S. E. 138); Southern Express Co. v. Ty Ty, 141 Ga. 421 (81 S. E. 114); Western Union Telegraph Co. v. Fitzgerald, 149 Ga. 330 (100 S. E. 104).

The presumption is always in favor of the reasonableness of the tax, and the burden is upon the plaintiff to establish the fact that it is unreasonable or prohibitive. It is shown under the facts of this case that the occupation tax, imposed upon the plaintiff by this ordinance, is unreasonable, prohibitive, or confiscatory? The undisputed evidence shows that the tax has driven out of the ice business one of the three ice dealers in the City of "Waynesboro, and prohibits. the plaintiff, one of these three ice dealers, from continuing this business in the city. This leaves the Waynesboro Ice Association as the sole ice dealer in Waynesboro, and gives to this association a monopoly of the ice business in that city. The effect of this tax has been prohibitive as to all dealers in ice, except this association.

The plaintiff asserts that his net earnings amounted to only $2,000 per annum; and this ordinance imposes a tax of thirty per cent, on that amount. The city contends that the plaintiff had been making a net income of $10,000 per annum. Even according to the contention of the city he was making this amount of net income before the Waynesboro Ice Association began to make and sell ice in Waynesboro. Since the plaintiff has been compelled to meet this new competition he has been able to do only about hall: as much business as he had been doing prior to the levying of this tax. It is shown that there are consumed in Waynesboro annually 2500 to 2700 tons of ice. The inference may be fairly drawn from the evidence that the plaintiff will hereafter sell not more than one half of this amount of ice consumed in that city. In that event he will pay twelve per cent, upon his net income as an occupation tax. But assuming that the plaintiff could earn $10,000 per annum, this occupation tax amounts to six per cent of that amount. This court has held that an occupation tax of $500 upon “money-lenders, copartners, associations, corporations, or individuals, lending money on household or kitchen furniture and wearing apparel, is unreasonable (Morton v. Macon, 111 Ga. 162, supra); and that a tax of $400 upon an agent selling fresh meats, his salary being but $1800, was excessive and unreasonable (Mayor etc. of Savannah v. Cooper, 131 Ga. 670, supra).

In this case the tax has been proved prohibitive in its results, by driving out all dealers but one, and in creating a monopoly in the ice business in the City of Waynesboro. This alone would not make such tax unlawful, but can be considered in determining, under the whole situation, whether such tax is unreasonable.

So we reach the conclusion that this occupation tax is unreasonable, and that the court below should have granted an injunction restraining its enforcement.

Judgment reversed.

All the Justices concur.