Joseph v. Mayor of Milledgeville

25 S.E. 323, 97 Ga. 513

• Court: Supreme Court of Georgia
• Decided: November 15, 1895
• Status: Published

Opinion

Simmons, Chief Justice.

On January 16, 1894, the Mayor and Aldermen of the-City of Milledgeville passed an ordinance for the levy and collection of license and special taxes for the purpose of raising revenue to meet the ordinary and extraordinary expenses of the city for that year. The ordinance imposed, “upon all gross sales of goods, wares and merchandise of’ every kind, made on and after February 1, 1894,” a tax of’ one third of one per cent. It was provided, however, that any person could relieve himself of this tax by paying $200' in advance per annum. An execution was issued against Adolphus Joseph for the amount of tax due by him under the ordinance; and he brought his petition to enjoin its-enforcement, upon the ground that the ordinance was void because repugnant to paragraph 1, section 1 of article 7 of the constitution, which declares that “all taxation shall be uniform upon the same class of subjects,” it being contended that the tax was rendered unequal by the provision for its commutation upon the payment of $200 in advance. The court refused an injunction, and the petitioner excepted.

If the ordinance in question contravenes the rule of uniformity prescribed by the constitution, it does so only in that part of it which provides for the commutation of’ the tax. In so far as it imposes a tax, it is uniform as to all persons upon whose business the tax is imposed. The rate is the same upon all gross sales of goods, wares and merchandise of every kind. The fact that a person thus taxed may, under another provision of the ordinance, secure a commutation of the tax, which, in case his sales for the year should exceed a certain amount, would result in reducing below tbe prescribed rate tbe rate actually paid by him, could not affect tbe legality of tbe tax as laid. Tbat part of tbe ordinance wbicb imposes tbe tax is independent of and separable from the part which provides for its commutation; so that if this latter part should be rejected as invalid, the part which is legal would still stand and be capable of enforcement. This being so, it makes no difference in the present case whether the provision for commutation is illegal or not. The illegality of tbe commutation would afford no reason for enjoining the collection of tbe tax itself. Judgment affirmed.