Mayor of Rome v. McWilliams & Co.

52 Ga. 251

Opinion

Trippe, Judge.

1. The act of February 17th, 1874, authorizes the mayor and council of the city of Rome to require the registration of, and to assess and collect a license fee from all persons, firms, companies and corporations engaged in any business, trade, calling or profession within the corporate limits of the city. The objection is that this act is unconstitutional, in that it empowers the city authorities to assess a different rate on some trades, callings, etc., than it does on others, and is therefore, in conflict with that provision of the constitution which requires taxation on property to be ad valorem, and uniform on all species of property taxed.

It has been held by this court in several cases, that a tax on businesses, professions, etc., was not a tax on property. It is unnecessary to do more than to refer to them, without repeating the argument; Mayor, etc., of Savannah vs. Charlton, 36 Ga., 460; Burch vs. Mayor, etc., of Savannah, 42 Ibid., 596; Bohler vs. Schneider, 49 Ibid., 195; Home Insurance Company of New York vs. City Council of Augusta, decided at this term. As long ago as 1832, it was held by the judges of the superior courts of this state, in convention, that “every man’s private business, pursuit or calling, and tilings in which he lias an interest, and many species of employment, are legitimate subjects of taxation, and are taxed; still, they are not, strickly speaking, property. They are the means from which income is derived, property made, but there is a clear distinction between the employment and the income or profits:” Dudley's Reports, 137.

The fact that it is called a license does not affect the ease before us, provided the city does not require a license from those who already have one from the state, or by its authority: See Mayor, etc., of Savannah vs. Charlton, supra. The ordinance passed under this act whieh we are considering, provides expressly that “all persons who have been licensed by the state or its authority, to pursue or practice their callings, shall not be required to take out a license,” and certain occupations and professions on which the license fee had been assessed, were afterwards, as appears from the answer to the bill, discharged from its payment.

This difficulty being removed, what is the difference,, so far as this constitutional provision is involved, between an act authorizing a license fee to be required from those who engage in business, etc., and an act granting power to tax that same business? Whatever may be said as to the distinction between a tax and a license, neither of them, when they apply to trades, callings and professions, are governed by tire ad valorem principle, or the uniformity rule, which control only taxation on property.

2. If, then, the ordinances complained of do not assess, as they now stand, such license fee or tax on any who are not subject to the same under the foregoing rule, or by express legislation, they are not illegal or void, provided, further, that they come within the limitation which we think should be set upon all such assessments. Section 29, article 1, of the constitution, prohibits a poll tax except for educational purposes, and limits that to one dollar. McCay, Judge, in pronouncing the opinion in Burch vs. Mayor, etc., of Savannah, said “If it (the tax on occupations, etc.,) be objectionable at all to the constitutional limitations, it comes more nearly within the prohibition of section 29, article 1.” He further says, “if the legislature were to attempt by taxing all occupations, practically to annul the prohibition against a poll tax, the question made might arise. But there is a clear distinction between a tax upon certain specified businesses, where the skill of the operator is a source of profit, or where the publicare appealed to for patronage and protection of a fixed and regular business, and a tax covering all persons whatever may be their occupation.” This indicates pretty clearly and correctly that there should be a limitation to a tax of this kind. If there be none, then could an ordinance be framed which would practically annul the prohibition against a poll tax, by assessing every one who worked or did anything for a living. In the extract from the case in Dudley’s Reports, this distinction between occupations, as to their being proper subjects of taxation or not, was recognized in the statement that “ many species of employment are legitimate subjects of taxation.” We are aware of the difficulty of prescribing any absolute or fixed rule upon this point. No terms can be used with such definite and specific meaning, that they will answer to and determine every case. But we think that rule is more consistent with principle and true policy, and less liable to conflict with the spirit and intent of the constitutional provision, which limits such tax, to such business, trades, callings or professions, as are fixed and regular, and dependent on the public for patronage and support, or when the tax does not extend to those pursuits or occupations which require only manual labor. Whilst it would prevent the striking down of all revenue from sources which have ever been considered legitimate subjects of taxation, it would, at the same time, be consistent with the intention of the constitution, by not levying en masse, though it might be with discriminating rates, on all who engaged in work for gain or maintenance and support, including those who toiled with the axe, the plough and the spade, as well as the banker, the wholesale merchant and the retail dealer in ardent spirits. The further qualification may be added as restricting the exercise of the power to assess this fee or tax, to-wit: that not more than one such tax should be required of any firm or the persons composing the firm, which is engaged in the business liable to pay the same. By this rule the assessment would be relieved of the complaint that it is obnoxious to the charge of imposing a capitation or poll tax. No showing was made in the bill of complainants, or at the hearing for an injunction, that any of those would come within such a rule, and would thereby be exempt from the license tax levied by the ordinance, and we can go no further in this decision than to state the general rule or principle.

3. It was further objected by some of the complainants who did not come within the particular terms of the second, third and fourth paragraphs of the first section of said act, that they were not liable to be taxed with any license fee, because of the general terms of the fifth paragraph. This position is founded on the rule that it is an established principle of construction that where general words follow particular ones, the former are to be' construed as applicable to the things or persons particularly mentioned: Sedg. Stat. and Const. Law, 423; or, as it is expressed by other authorities, where general words follow particular ones the rule is to construe them as applicable to persons or things ejusdem generis. We have no dissent to make to this rule. It does not apply to the construction of the statute we are considering. The first words of this act are general words, broad and comprehensive; they grant power to the city council “ to require all persons, firms, companies and corporations, whether they reside within the corporate limits of said city or not, engaged, or about to engage, in any business, trade, calling or profession, within said corporate limits, to register their names and business, trade, calling or profession, in the office of the clerk of the council, at such times and under such regulations as the mayor and council may prescribe.” Here, then, in the first words of the act, are the general wmrds, making every person, etc., liable to register their names and business. This includes all those who are thereafter again referred to, both by particular and general words. The next paragraph limits the license fee which may be assessed on bankers, etc.; the third limits it on retail liquor dealers; the fourth limits it on other liquor dealers and druggists, who sell liquor for other than medicinal purposes; the fifth limits it on all other persons. Thus the general words both precede and follow the particular ones, and when they are first used, comprehend all those who are included in the subsequent particular or general words. This was not so in any of the cases to which AArn were referred, and in which it Avas held that this rule of construction applied. In 21 Georgia, 13, the words of the statute were, “lost papers, deeds, and other writings.” In 34 Georgia, 186, the act under review provided for the “ impressment of forage, articles of subsistence or other property.” In 49 Missouri Reports, 559, there Avas an enumeration in the statute of many particular trades, occupations, etc., followed by the general words, “and all other business, trades,” etc. In the decision rendered in the case last cited, after quoting the rule of construction above stated, it is said: “By this is meant simply that the law should be construed according to the apparent intention of the legislature, to be gathered from the language used, connected with the subject of legislation, so that its terms shall not be extended by implication beyond the legitimate scope or import of the words used.” So we think in this case that such a rule of interpretation should be adopted as will carry out the intention of the legislature. And it is our opinion, that under this act the city council could, by the first paragraph of the first section of this act, require all persons, etc., to register— that under t'he second, third and fourth paragraphs, they could assess the license fees therein specified on the particular classes mentioned in those paragraphs, and under the fifth, levy the fee in it stated, on all others of those registered or liable to registration which are comprehended in the first, and. not included in the second, third and fourth paragraphs. Any other construction would lead to the necessity of rejecting a portion of the section altogether, or at least render it inoperative and a nullity. The court below sustained the position on this point assumed by complainants, and in that we think erred.

4. By the first section of the act referred to, the city council was authorized to assess a tax not exceeding one per cent, on sales made by persons selling goods on commission, and by registered firms, persons, companies and corporations. Under this the council imposed a tax of one-half of one per cent, on such sales, and allowed a deduction from the sales of the amount of stock, on which a tax had been levied. The objection is that the act is unconstitutional, because it is in violation of that provision of the constitution already quoted, and if that be so, the ordinance, of course, would fall with it. The case of Livingston vs. City Council of Albany, 41 Georgia, 21, is cited to sustain this objection. But when the facts of that case are looked intoj as well as the decision itself, there is no conflict between it and the one we now render. The head-note of that case is: “The mayor and city council of the city of Albany have n'o power to impose a specific tax of $1 00 per head on each horse or mule sold by drovers in said city. They may tax such sales ad valorem.” The tax was $1 00 on the sale of every horse or mule sold in tiie city belonging to drovers, without regard to its value. It was held that this was in violation of the section of the constitution referred to. That was the only question in the case. It was not only put in the head-note that such sales might be taxed ad valorem, but it was said in the opinion that “a tax of a definite sum on each $ 100 00 of the value of all horses or mules under the protection of the city and sold within its limits, would be a legal tax,” and further that the “legislature has power to impose or authorize the authorities of a city to impose a tax upon all such sales made by drovers, as they are a distinct class of traders, engaged iu a distinct business or trade. But it must be imposed ad valorejn.” It is true it is said, “a tax on the sale of horses or mules, or upon horses and mules sold, is a tax on property,” but this must be understood in connection with the question involved, to-wit: a tax of f> 1 00 on each horse or mule sold, without reference to its value, and not a percentage upon the amount of sales. It is nowhere said iu that case that a tax on sales, upon the amount of sales, is a tax on property. A specific tax on the sale of an article, having no' regard to its value, and a-tax apportioned according to the amount of sales, whether gross or net, are very different things. The first may be a property tax, but the latter is not, properly speaking, a tax on property, and is not obnoxious to the constitutional provision relied on. Cooley in his work on Constitutional Limitations, section 495, in discussing this question, says: “Taxes assume the form of duties, imports and excises. They may also assume the form of license fees, for permission to carry on particular occupations. They may be specific, such as are often levied on corporations in reference to the amount of capital stock, or to the business done, or property owned by them; or they may be direct upon property in proportion to its value, or upon some other basis of apportionment which the legislature shall regard as just, and which shall keep in view the general idea of uniformity. The taxes collected by the states are mostly of the latter class, and it is to them that the constitutional principles we shall have occasion to discuss, more particularly apply.” In sections 496 and 497, he proceeds with the consideration of this question, and says: “There is probably no state which does not levy other taxes than those imposed upon property.” After enumerating various kinds of ot[ier taxes, he adds, “ it is evident, therefore, that the constitutional requirements sometimes met with, that taxation upon property shall be according to value, do not include every species of taxation, but all special cases, like that referred to, are by implication excepted.” No case was referred to in the argument, nor have we found one, in which it was held that a tax like the one under consideration was a tax on property and subject to the unformity and ad valorem rules of the constitution in reference to taxation. The one in- 41 Georgia, already referred to, was a specific tax on the sale of specific property, regardless of value. In 42 Georgia, 427, it was a similar case, and none contrary to the decision we render in this has been found in any of the state court reports, where constitutional provisions similar to ours are to be found. Our conclusion is that a tax on sales, assessed on the amount of sales, not being a specific sum imposed on the sale of particular property, without regard to its value, does not come within that requirement of the 27th section of the first article of the constitution which provides that taxation on property shall be ad valorem and uniform on all species of property taxed.

5. The ordinance does not assess the amount of license fee which the act authorizes the city council to fix, and the fee for registration allowed the clerk, if added, would still leave a large margin. The clerk is entitled to compensation for the duties of registration, and it matters not whether he is paid by the allowance of a registration fee from the person registered, or by adding that much to the license foe, and then appropriating the same for his services.

6. Under the eighth section of the act, giving the broad power therein expressed, the mayor and council have authority, by ordinance, to impose a fine on those who are liable to registration and to pay the license fee, for refusing to comply with the provisions of the ordinance requiring the same.

The judgment of the court below is modified so as to conform to the opinions herein expressed.