Opinion
22970.
ARGUED MAY 11, 1965.
DECIDED JUNE 17, 1965.
Equitable petition. Fulton Superior Court. Before Judge McKenzie.
Franklin B. Anderson, for plaintiffs in error.
Robert F. Lyle, Henry L. Bowden, Edwin L. Sterne, contra.
The ordinance of the City of Atlanta levying a tax of $15 on persons practicing law and other named professions is not void for any reason alleged in the petition.
ARGUED MAY 11, 1965 — DECIDED JUNE 17, 1965.
Morris Brown and others, alleging themselves to be practicing attorneys with offices in the City of Atlanta, and duly admitted to practice law in the State of Georgia, brought an action for themselves and others similarly situated against the City of Atlanta. The petition alleged: On October 7, 1963, the Board of Aldermen of City of Atlanta as a part of the Tax Ordinance of the city adopted an ordinance providing for a tax of $15 on persons practicing law and other named professions. The ordinance was approved by the mayor, and became effective on January 1, 1964. This ordinance is in conflict with Ga. L. 1953, p. 207, which is a general law of general application. The tax of $15 is in excess of the levy imposed under the laws of the State in existence in 1950. The Supreme Court of Georgia has approved an Act incorporating the Bar of the State of Georgia, and set a fee to be paid annually by all members who are practicing law in the courts of the State. The tax ordinance is illegal, and unless restrained, the City of Atlanta will enforce this illegal ordinance and subject the petitioners to lose their property rights and to criminal prosecution. The fi. fa. notice two of the petitioners received threatened them that if the tax was not paid by November 2, 1964, a police case would be made against them. These two petitioners are veterans of World War II, and they have a certificate from the State of Georgia and the Ordinary of DeKalb County granting them the right to practice law without paying any license fee. The petitioners prayed that the defendant be temporarily restrained and permanently enjoined from enforcing the ordinance; that the ordinance be declared illegal, null, and void as to the petitioners; for a declaration of the rights of the petitioners and others similarly situated and affected by the ordinance; and for other relief.
A temporary restraining order was granted. The defendant filed general and special demurrers. On the hearing, the temporary restraining order was dismissed, and the general demurrer of the defendant was sustained. The order recited that counsel for the defendant had stated in his place that the municipal revenue collector had been instructed that the tax comes under the taxing authority of the city and not under its police power, and that the notation "Police Case Next" appearing on the fi. fa. attached to the petition is not to be used on notices sent to professional men.
The petitioners except to the judgment sustaining the general demurrer of the defendant.
Note: The opinion in this case was prepared by the late Presiding Justice Head for submission to the court and is approved by the court as written.
Under the General Tax Act of 1935 every practitioner of law and certain other named professions was required to pay a State tax of $15 annually, and no municipal corporation or county authority could collect an additional tax on the professions enumerated. Ga. L. 1935, p. 13. By the Act of 1951 (Ga. L. 1951, pp. 157-175) this tax and various other business and professional taxes were abolished. Ga. L. 1951, p. 163.
In 1953 the General Assembly passed an Act providing in part: "From and after the passage of this Act no municipal corporation or county authority of this State, notwithstanding any provision in its charter to the contrary, shall levy or collect any license, occupation or professional tax upon practitioners of law [and other named professions] except at the place where any such practitioner shall maintain his principal office. Provided, such levy shall not exceed the levy imposed under the laws of the State of Georgia as the same existed in 1950." Ga. L. 1953, Jan. Sess., p. 207 ( Code Ann. § 92-307).
In City of Atlanta v. Gower, 216 Ga. 368 ( 116 S.E.2d 738), this court had under consideration a tax ordinance of the City of Atlanta which levied a tax of $50 for the remainder of the year 1960 on the practice of professions licensed by the State. This court held in that case (at page 370) that: "The Act of 1953 is a general law having State-wide application, and in the absence of some other constitutional general law, the City of Atlanta would be prohibited by the Act of 1953 from levying a tax on the professions named in the General Tax Ordinance of the city in a sum greater than $15."
The tax ordinance of the City of Atlanta effective January 1, 1964, which is attacked by the petition in the present case, levied a tax of $15 annually on all persons practicing named professions who maintain a principal office in the city for the practice of such profession. The allegation in the petition that the tax of $15 provided in the ordinance is "in excess of the levy imposed under the laws of the State of Georgia as existed in 1950," is an erroneous conclusion of law.
Pursuant to Ga. L. 1963, pp. 70-72 ( Code Ann. Ch. 9-7), this court approved rules and regulations for the organization and government of the State Bar of Georgia. Under Rule 1-501 ( 219 Ga. 882) attorneys of this State are required to pay an annual license fee. It is contended by the petitioners that the requirement of the payment of this license fee precludes a municipality from collecting an additional professional tax on attorneys, under the language of the Act of 1935 (Ga. L. 1935, p. 13) that: "No municipal corporation or county authority shall levy or collect an additional tax on the professions, businesses, or occupations enumerated above."
The license fee required under the rules and regulations of the State Bar of Georgia is not a professional tax on attorneys levied by the State of Georgia in lieu of the professional tax levied by the Act of 1935 (Ga. L. 1935, p. 13). This license fee is paid to the State Bar of Georgia, and the funds received are disbursed under the direction of the Board of Governors of the State Bar of Georgia. No part of these funds is ever paid into the treasury of the State of Georgia. A municipality is not precluded from levying a tax on attorneys because of the license fee paid to the State Bar of Georgia.
The tax ordinance claimed to be void in the present case does not undertake to make the payment of the tax a condition precedent to the right to practice law in the City of Atlanta (see Wright Hill v. Mayor c. of Atlanta, 54 Ga. 645), and it is not invalid for any reason alleged in the petition.
The allegation that two of the petitioners hold a veteran's license granting them the right to practice law without paying a license fee would not authorize the relief sought in this case, a declaration that the ordinance is void, and an injunction against its enforcement.
The petition did not state a cause of action for the relief sought, and the trial judge did not err in sustaining the general demurrer of the defendant.
Judgment affirmed. All the Justices concur.