Summary
determinating that franchise fees and business license fees are different and paying a franchise fee is not an exemption from paying a business license fee
Summary of this case from City of O'Fallon v. CenturyLink, Inc.Opinion
18032.
ARGUED NOVEMBER 13, 1952.
DECIDED JANUARY 13, 1953. REHEARING DENIED FEBRUARY 9, 1953.
Petition for injunction. Before Judge Pharr. Fulton Superior Court. September 24, 1952.
J. C. Savage, J. C. Murphy, J. M. B. Bloodworth, John E. Feagin and Henry L. Bowden, for plaintiff in error.
William L. Moore and Johnson, Hatcher, Rhudy Meyerson, contra.
The act of the General Assembly (Ga. L. Ex. Sess. 1937-38, pp. 307, 317; Code, Ann. Supp., § 16-427), providing for building and loan or savings and loan associations and their exemption from taxation, does not prohibit the levying and collection by a city of a license fee.
No. 18032. ARGUED NOVEMBER 13, 1952 — DECIDED JANUARY 13, 1953 — REHEARING DENIED FEBRUARY 9, 1953.
First Federal Savings Loan Association brought a petition against the City of Atlanta to enjoin the sale of property levied on by the city for non-payment of a license fee. A general demurrer by the city was overruled, and to that judgment exceptions were filed.
The sole question for determination is whether the association is subject to the license fee. The city had fixed a license fee on loan and building associations, but the association contends that the ordinance was repugnant to and in violation of Ga. L Ex. Sess. 1937-38, pp. 307, 317 (Code, Ann. Supp., § 16-427) to wit: "No state chartered association, as defined by this Act, shall be assessed or subjected to taxation by the State, any county, municipality or other political subdivision taxing authority, on its franchise, capital, reserves, surplus, loans, shares, or accounts; except that any real property and any tangible personal property not hereinbefore specifically mentioned, which may be owned by it, shall be subject to taxation to the same extent, according to its value, as all other real and tangible personal property is taxed. The foregoing section shall also apply to all Federal savings and loan associations with a home office located within this state."
The controversy arises over the meaning of the word "franchise," as here used; the city taking the position that it is only an exemption from a franchise tax, and the association insisting that it gives an exemption from a license fee.
The act provides that a savings and loan association is not subject to taxation "on its franchise, capital, reserves, surplus, loans, shares, or accounts." "Franchise" is a term that has various significations. 23 Am. Jur. 715. It has been used in various senses. 37 C.J.S. 141. To properly construe the meaning of the word as here used, it must be considered in connection with the other property for which an exemption from taxation was given. Franchises are property (37 C.J.S. 151), and our law makes provision for the taxation of a franchise. Code, § 92-2302. When the word "franchise" is considered in connection with the other items exempted from taxation, it must be taken as meaning the powers conferred by the sovereignty, and that the exemption granted is an exemption from taxation of the property right in the powers so conferred, and not an exemption from a license or occupation fee required by a municipality in order to do business.
In Macon Railway Light Co. v. City of Macon, 136 Ga. 797 ( 72 S.E. 159), it was held that an agreement that a corporation's payment of a percentage of its gross receipts would be in lieu of all "license, occupation, or special tax or taxes" did not prevent a tax on its franchise; and that a tax on a franchise is neither license, occupation, nor special tax.
While the trial judge properly followed the ruling of the majority opinion in City of Griffin v. First Federal Savings Loan Assn., 80 Ga. App. 217 ( 55 S.E.2d 771), where the identical question was held contrary to what is here ruled, yet the ruling made in that case must yield.
Accordingly, the trial judge erred in overruling the demurrer filed by the city.
Judgment reversed. All the Justices concur.