City of Albany v. Newark Shoe Stores Co.

110 S.E. 283, 152 Ga. 557, 1922 Ga. LEXIS 218

• Court: Supreme Court of Georgia
• Decided: January 13, 1922
• Docket: No. 2696
• Status: Published

Opinions

Gilbert, J.

1. The Newark Shoe Stores Company .conducted a retail shoe business in a storehouse in the City of Albany. It had paid all taxes due by it to the city for conducting that business. The corporation employed a salesman and manager to work both at its storehouse and also at intervals to go out into said city from house to house, exhibit samples of shoes, and solicit customers to visit the store and buy shoes the samples of which he had displayed. Held:

(а) Such solicitation of trade did not constitute a business separate and distinct from that of selling merchandise, but was merely an instrumentality in or an incident to that business, being in its nature incapable of such separate existence as to constitute in itself a business in either the legal or commercial sense.

(б) The authority under the municipal charter to levy and collect a specific or occupation tax on all businesses, occupations, professions, callings, or trades, did not authorize the adoption of an ordinance separating from the business of selling merchandise the incident of calling from house to house and soliciting trade as above described, for the purpose of increasing sales, and classifying such solicitation as a separate business subject to taxation. Hewin v. Atlanta, 121 Ga. 723 (49 S. E. 765, 67 L. R. A. 795, 2 Ann. Cas. 296), and authorities cited.

2. Applying the principles ruled in the preceding headnote, the court did not err in granting an injunction restraining the collection of a tax of $200 on the petitioners for such solicitations as above described, the city having caused the arrest of the employee on penal charge of violating the city ordinance, and threatening to rearrest him for each act of so soliciting trade, and also to proceed by the issuance of an execution against the Shoe Stores Company for the amount of the tax. Baldwin v. Atlanta, 147 Ga. 28 (92 S. E. 630).

Judgment affirmed.

All the Justices concur, except Fish, O. J., dissenting. No. 2696. January 13, 1922.

Injunction. Before Judge E. C. Bell. Dougherty superior court. May 30, 1931.

James lift Mann, for plaintiff in error. Pottle & Hofmayer, contra.