Opinion
16668.
JUNE 15, 1949.
Injunction, etc.; motion to dismiss. Before Judge Price. Chatham Superior Court. March 24, 1949.
A. Leopold Alexander, for plaintiffs in error.
Bouhan, Lawrence Williams, contra.
The petition set forth a cause of action, and the motion to dismiss, in the nature of a general demurrer, was properly overruled by the trial court.
No. 16668. JUNE 15, 1949.
On January 28, 1948, Savannah Electric Power Company, hereinafter referred to as the company, filed its bill in equity in the Superior Court of Chatham County, Georgia, against the Mayor and Aldermen of the City of Savannah, a municipal corporation (hereinafter referred to as the city), Heyward E. Allen as city marshal of the city, and R. S. Carr as city treasurer of the city. By amendment William E. Register was substituted for Heyward Allen, he having succeeded Heyward Allen as city marshal on January 24, 1949.
The petition set forth in substance the facts: that the company had been engaged in the business of operating a street railway in the City of Savannah since its charter was granted in 1921; that it had also been engaged in the business of manufacturing, generating, and selling electric power in said city, and that its street railway system extended to the Town of Thunderbolt and to the village of Isle of Hope, both in said county; that it had been gradually substituting motor buses for street cars in operating its system; and that on December 31, 1945, it sold its entire transportation system to Savannah Transit Company, and since that date had been engaged solely in the business of manufacturing and selling electric power.
The petition further alleged that in December, 1934, the city passed an ordinance for the regulation of certain kinds of business in the city, the pertinent provisions of which ordinance have been repeated in each annual ordinance adopted by the city since said date. Said ordinance contains a general section number seven, under which the greater part of all specific, occupation, and license taxes were assessed by the defendant municipality. The section is divided into alphabetical subsections, which list the various businesses upon which taxes are assessed, including the following quoted subsections, which are involved in the determination of this case:
(B) "Buses, carrying ten passengers or more and operating either in the city exclusively, or from points within the city to outside the city, one hundred dollars for each vehicle, and for every trailer, twenty-five dollars ($25).
(S) "Street railroad companies, whether under control of another company or not, in lieu of the specific tax heretofore required, shall pay to the City of Savannah, for the privilege of doing business in the city, and for the use of the streets of the city, at the rate of two hundred dollars ($200) per mile or fraction of a mile eliminating all switches and double tracks and conforming the charge to one track on each street used in the City of Savannah by said railroad company, and it shall be the duty of street railroad companies to make a return, under oath, through their proper official, of the amount of their trackage in the City of Savannah, and in addition thereto twenty-five dollars ($25) for each and every car at any time used by such company in the city; and it shall be required that each and every railroad company doing business in this city, shall take out badges for all cars employed by them, which badges shall be furnished by the city treasurer and which shall be numbered. It shall furthermore be required that each and every car employed by each and every street railroad company shall have such badge as hereinbefore provided securely fastened in a conspicuous place upon the inside of the car.
"Street Railway Buses. All persons, firms or corporations operating motor buses or other motor vehicles in connection with the operation of street railway cars, using the streets of the City of Savannah and operated on regular routes and schedules, shall pay an annual street tax assessment of $200 per mile for each mile, or fraction thereof, of any streets or lanes of the City of Savannah over which such motor vehicles shall be operated. If, in the routing of such motor vehicles, belt line route shall be fixed, the tax shall be based on one way and that shall be the longest line of the route. Provided, however, if it shall be necessary to facilitate transportation in the city, for street railway companies operating bus service, to operate buses on the same streets as the street railway cars are operated and by the same owner or operator, there shall be but one tax or license, and that shall be the tax or license prescribed for the operation of the street railway cars on that street. The street tax assessment herein provided shall be in addition to all other lawful taxes and/or assessments levied upon the persons or property liable therefore by the City of Savannah. All funds arising from the street tax assessment provided in this paragraph, shall be by the city treasurer placed in a special fund to be known as the `Street Improvement Fund,' and shall be kept separate and distinct from the general or other funds of the city, and shall be withdrawn only on Resolution or Ordinance of City Council, and used only and exclusively for the repair, maintenance and upkeep of the streets of the City of Savannah, and that part of those streets used by the motor vehicles paying this tax."
The petition further alleged: The petitioner has paid to the defendant municipality in each of the years from 1935 to 1945, inclusive, in addition to all other taxes required of it by law, the specific license and occupation taxes imposed by and provided in the above-stated tax ordinances other than the specific license therein assessed upon "Buses, carrying ten passengers or more and operating either in the city exclusively, or from points within the city to outside the city, one hundred dollars for each vehicle, and for every trailer, twenty-five ($25) dollars." Such specific license and occupation taxes paid by the petitioner were the only ones ever demanded or required of it by said defendant municipality. The total taxes paid by it to the city in the years 1941 to 1945 ranged from about $59,000 to about $67,000.
The petition further alleged that on December 19, 1947, the city treasurer issued executions against the company for the tax set forth in subsection "B" of the ordinance of 1934, for each of the years 1941 through 1945, the amounts being approximately $8000 for each year; and the city marshal levied these executions on property of the company, and was proceeding to advertise said property for sale to satisfy the executions.
The petition alleged that the executions were null and void for the reasons: (1) That the ordinances imposing a license tax upon each vehicle carrying more than ten passengers operating in Savannah are in contravention and violation of § 68-312 of the Code of Georgia of 1933, which provides that, although cities or towns may require the registration of the numbers of State motor vehicle licenses, "no additional license fee shall be charged by any municipality." The incidents of the tax on buses is directly upon the owner thereof for the privilege of operating certain types of motor vehicles. (2) That the provisions of the ordinances under which said executions purport to issue do not apply and were not intended to apply to petitioner, because of the facts stated in paragraph 10 of the petition. (3) The tax on buses, if applied to the petitioner, constitutes double taxation and an unreasonable and illegal division and classification of the petitioner's business into its constituent parts. (4) The tax on buses, if applied to the petitioner, is unreasonable, oppressive, and confiscatory, violative of the due-process clauses of the State and Federal Constitutions. (5) The tax on buses, as applied to the company, is discriminatory, in that the subsection classifies and would tax the business of the petitioner which is the operation of buses carrying ten passengers or more, while, at the same time, imposing no tax on buses carrying less than ten passengers. (6) That the said above-described executions as issued by the defendant treasurer in favor of the defendant municipality are illegal, null, and void, in that the ordinance which purports to authorize the city treasurer to issue an execution carrying a general lien for nonpayment of license or occupation taxes accruing under the general tax ordinances of said city in each of said years was not passed or in effect prior to October 17, 1947, on which date it was adopted at a regular meeting of the mayor and aldermen of said defendant municipality; that the ordinance of October 17, 1947, is retroactive in character and effect and destroys vested rights of the petitioner, its creditors and stockholders, in violation of and in conflict with article I, section III, paragraph II of the Constitution of the State of Georgia, providing, "No bill of attainder, ex post facto law, retroactive law, or law impairing the obligation of contracts, or making irrevocable grant of special privileges or immunities, shall be passed," and with the due-process clauses of the State and Federal Constitutions, upon the various grounds therein alleged.
The petitioner prayed for a temporary restraining order, and a temporary and permanent injunction to prevent the city from proceeding with the levy, advertisement, or sale of its property under the executions; that the executions be declared null and void and be delivered up and canceled; and that the taxes sought to be collected from the petitioner be declared and held to be inapplicable to it.
This petition was presented to Honorable David S. Atkinson, Judge of the Superior Court of the Eastern Judicial Circuit, who held himself disqualified to act, and referred the matter to Honorable Melville Price, Judge of the Superior Courts of the Atlantic Judicial Circuit, who was designated to preside. Judge Price then granted a temporary restraining order and issued a rule nisi.
The city and its codefendants then filed an answer, in which they substantially admitted the facts as set forth in the petition, but denied that the executions were null and void for any of the reasons set forth in the petition. The city also filed a special demurrer, in which it contended that certain allegations in the petition, to the effect that the ordinance of 1934 had never been held to apply to it by certain former officials of the city, and that the city had never made any demand for the tax or any effort to collect it, were irrelevant and immaterial and should be stricken from the petition.
The matter having come on for a hearing on the special demurrer, Judge Price overruled the special demurrers on grounds 1, 2, 3, and 4 thereof, and sustained the same on ground 5, which had the effect of striking from the petition certain allegations with respect to the issuance of previous executions by the city for the same tax, earlier in the year 1947, which executions had afterwards been determined to be void. Each of the parties in the case filed exceptions pendente lite to this ruling of Judge Price, although in the present case there is no cross-bill of exceptions by the company based on its exceptions pendente lite.
On March 24, 1949, the city then filed a motion to dismiss the petition on the grounds, that the facts set forth in the petition, considered as a whole, did not set forth a cause of action against the defendants, nor did they set forth any grounds for the granting of any of the relief prayed for. This motion was, on the same day, overruled by Judge Price, and the city and its codefendants filed their bill of exceptions to this order overruling the motion to dismiss the petition, including in the bill of exceptions the exceptions pendente lite, which have been referred to.
In the brief of counsel for the plaintiff in error it is stated that the motion to dismiss, being in the nature of a general demurrer, raised all of the various points of law which may be enumerated as follows:
(1) Are the executions void because the tax is invalid, as in conflict with the provisions of § 68-312 of the Code of Georgia, which is a part of the Georgia Motor Vehicle Law?
(2) Does the tax apply, and was it intended to apply to the business of operating a street-railway system by the company?
(3) Is the tax an illegal resolution of the business of the company into its component parts, and a taxing of each of the parts?
(4) Would this tax, added to other taxes paid by the company, be confiscatory and therefore illegal?
(5) Is the ordinance of 1934 discriminatory because it taxes buses carrying ten or more passengers, but does not tax those carrying less than ten passengers?
(6) Is the attempt to collect the tax under the provisions of an ordinance adopted in 1947, providing for the issuance of executions, a violation of certain provisions of the Federal and State Constitutions?
It is stated by counsel for the plaintiff in error that, if the correct answer to any one of these questions is contrary to the contentions of the city, then the Supreme Court must affirm the judgment of the trial court, but if the answers to all of these questions are as contended by the city, then such judgment should be reversed, which will have the legal effect of dismissing the bill in equity.
We think that the correct answer to the question numbered (2) by counsel for the plaintiff in error "Does the tax apply, and was it intended to apply to the business of operating a street-railway system by the company," is determinative of this case, and that this question alone need be answered.
By reference to the pertinent provisions of the ordinance under consideration, it will be seen that subsection "B" of section 7 thereof, which is the section here under attack, provides: "Buses carrying ten passengers or more and operating either in the city exclusively, or from points within the city to outside the city, one hundred dollars for each vehicle, and for every trailer, twenty-five dollars ($25)."
By reference to subsection "S" of section 7 of the ordinance, it appears that by the first paragraph thereof it is provided: "Street railroad companies, whether under control of another company or not in lieu of the specific tax heretofore required, shall pay to the City of Savannah, for the privilege of doing business in the city, and for the use of the streets of the city, at the rate of two hundred dollars ($200) per mile or fraction of a mile, eliminating all switches and double tracks and conforming the charge to one track on each street," etc. This subsection further provides: "Street Railway Buses. All persons, firms or corporations operating motor buses or other motor vehicles in connection with the operation of street railway cars, using the streets of the City of Savannah and operated on regular routes and schedules, shall pay an annual street tax assessment of $200 per mile for each mile, or fraction thereof, of any streets or lanes of the City of Savannah over which such motor vehicles shall be operated." There is thus a specific and definite statement in subsection "S" that the mileage tax therein provided for covers the operation of both the street-railway system and the buses operated by the street-railway system in connection therewith, and that it is specifically provided that this shall be "in lieu of the specific tax heretofore required," and that this mileage tax is to cover both the general business license tax and also the license tax for the use of the streets by both the tracks and buses of the company in carrying on the business of the street-railway system.
It is conceded by counsel for both parties that the taxes here imposed are for the purpose of revenue rather than for a license charged under the police power. In Mystyle Hosiery Shops v. Harrison, 171 Ga. 430 ( 155 S.E. 765), this court held: "'Statutes which impose restrictions upon trade or common occupations, and which levy an excise or tax upon them, must be construed strictly'; `statutes levying duties or taxes upon subjects or citizens are to be construed most strongly against the government and in favor of their subjects or citizens, and their provisions are not to be extended, by implication, beyond the clear import of the language used'; `revenue laws are neither remedial statutes nor laws founded upon any permanent public policy, and are not, therefore, to be liberally construed; and hence, whenever there is a just doubt, that doubt should absolve the taxpayer from his burden.' Mayor c. of Savannah v. Hartridge, 8 Ga. 23; Standard Oil Co. v. Swanson, 121 Ga. 412, 414 ( 49 S.E. 262)." See also Case-Fowler Lumber Co. v. Winslett, 168 Ga. 808 ( 149 S.E. 211); McIntyre v. Harrison, 172 Ga. 65 ( 157 S.E. 499). In order to avoid the attack stated as question No. 1, that the ordinance here involved contravenes and is violative of the provisions of Code § 68-312, counsel for the plaintiff in error argue that subsection "B" of the ordinance was intended to impose a privilege or business tax to raise revenue for the use of the streets of the City of Savannah for business purposes, as was held with reference to the ordinance involved in Derst Baking Co. v. Savannah, 180 Ga. 510 ( 179 S.E. 763); but if we should so hold here, then we find that a tax for this identical purpose is provided for under subsection "S" of the ordinance, which applies specifically to street-railway companies; and if subsection "B" should be held to impose a general business license tax, then too subsection "S" specifically provides that the mileage tax therein specified is "for the privilege of doing business in the city." If subsection "B" of the ordinance should be held applicable to this company, there would thus be levied against this particular company a double tax, for subsection "S" of the ordinance covers both purposes.
In Warren v. Suttles, 190 Ga. 311, 314 ( 9 S.E.2d 172), it is said: "Courts should not permit the collection of a tax unless it is plain that it was the intention of the General Assembly to levy it. All doubt should be resolved in favor of the taxpayer."
In Georgia R. c. Co. v. Wright, 125 Ga. 589 (3) ( 54 S.E. 52), it is held: "A tax law will not be so construed as to require the same property to be taxed a second time, unless such a construction is required by the express terms of the statute or by necessary implication."
In 50 American Jurisprudence 371, § 367, it is stated: "Where there is in the same statute a specific provision, and also a general one which in its most comprehensive sense would include matters embraced in the former, the particular provision must control, and the general provision must be taken to affect only such cases within its general language as are not within the provisions of the particular provision."
Applying these principles to the tax now sought to be collected, we find the total operations of the street-railway company specifically encompassed and taxed by the single subsection "S", which excludes by necessary implication subsection "B", where the terms of the latter do not expressly state that it is to apply to street-railway companies. In Torrance v. McDougald, 12 Ga. 526 (2), it is held: "The rule of construction applicable to all writings, Constitutions, statutes, contracts and charters, public or private, and even to ordinary conversations, is this: that general and unlimited terms are restrained and limited by particular recitals, when used in connection with them." See also Ross v. Jones, 151 Ga. 425, 428 ( 107 S.E. 160).
Applying the foregoing authorities to the tax ordinance here under consideration, a proper construction thereof requires the conclusion that subsection "B" does not apply, and was not intended to apply to the business of operating a street-railway system by the plaintiff company.
As pointed out in the statement of facts preceding this opinion, the plaintiff made several attacks on the license tax, the collection of which it seeks to enjoin, but we do not deem it necessary to deal with all of these questions, since, having held that for one of the reasons asserted subsection "B" of the ordinance in question does not apply to the plaintiff company, the statement of other reasons justifying our conclusions would be unnecessary. For the reason hereinbefore stated the trial court properly overruled the general motion to dismiss the petition.
Judgment affirmed. All the Justices concur.