Mayor of Savannah v. Gresham , 102 Ga. 517 ( 1897 )

Simmons, C. J.

Where an execution had issued to collect a license-tax imposed by a municipal ordinance upon a particular business, and the defendant in execution filed an equitable petition to enjoin its collection, on the ground that he was not engaged in a business to which the ordinance in question was applicable, and at the bearing the contrary was affirmatively and conclusively proved, it was error to grant a temporary injunction suspending the further progress of the execution.

Judgment reversed.

All the Justices concurring.

Defendants introduced the affidavit of Kelly: Am deputy city marshal and was at the meeting of the finance committee of the city at the hearing of the petition of Gresham to be relieved from the tax of $250, which petition was before the city council February 12, 1896, and was referred to the finance committee, the adverse report of which was adopted by council February 26. At this hearing before the finance committee Gresham admitted, in response to questions put to him, that on or about February 1, 1896, he loaned $4 upon a watch, that about the same date he loaned Mack Thompson $15 or $20 on a sewing-machine, that between January and February, 1896, he loaned Fred Hazel $12, and that he had loaned money during 1896 to George Waters on an organ, the amount being $20, and he admitted that he expected to have • returned on the short loan (as deponent understood for thirty days) $26 for this loan of $20. It appeared at this investigation that Gresham was in the habit of lending money on cards to employees of the road and others who dealt with him, charging' therefor large interest. Also, affidavit of William Garrard and others, members of the finance committee, similar to the affidavit of Kelly. Also, the affidavit of Joseph Rogers: I worked for the C. R. R. at Savannah for five or six months up-to February, 1896. During each month of this time I borrowed from Gresham, and he charged me twenty cents for each dollar advanced. I secured him by an order on the paymaster of the O. R. R. for the amount advanced, plus the interest,, which would be “O. K’d.” by the paymaster, and this amount,, with interest, would be collected by Gresham from the C. R. R. on pay-day. I borrowed money twice in this way during the-present year, paying interest to Gresham at the rate mentioned ; and other employees of the C. R. R. did the same thing.. Gresham would advance to any one working for the road at this rate of interest. Defendants put in evidence the petition of Gresham to the mayor and aldermen, dated February 7,. 1896, which stated, among other things: It is his custom in the course of the business (general grocery and liquor business) to deal with a number of his customers on credit. He takes no security save an order on the employer of the customer for a stated amount. He issues to customers a card for such amount as may be agreed upon, to be punched as the. purchases are made, the balance at the end of the month unpunched being good for so much money, or, as it may be, extended credit on it. In addition to their groceries and supplies-his customers often need cash during the month for various-expenses, and he often advances them small sums, punching the card for the sum loaned and interest', just as if there had been a purchase of groceries or anything else for like-amount. He has loaned no money for interest on articles of personalty-deposited with him, nor on chattel mortgages; and what he-does loan as aforesaid is simply to his customers and at their solicitation.

Samuel B. Adams, for plaintiffs in error. John Nicolson Jr., contra.