City of Hogansville v. Wofford Oil Co. , 178 Ga. 770 ( 1934 )

Bell, J.

The oil company filed a suit against the city, to enjoin the enforcement of an occupation tax against wholesale dealers in gasoline, contending that it was not conducting the business of a wholesale dealer in the municipality. The city filed an answer but no demurrer, and the trial resulted in a verdict in favor of the company. The city’s motion for a new trial was overruled, and it excepted. The evidence showed, without dispute, that the company consigned to the local retail dealer a stock of 2000 gallons of gasoline from which that dealer was at liberty to draw at will, without further communication with the company, and which he would replenish from time to time by ordering additional gasoline which the company would deliver from its storage tanks situated in a neighboring city and collect for as delivered. Held:

1. The company, in placing a stock of gasoline at the disposal of the retailer from which he could and did supply himself according to his successive needs upon the conditions indicated, became a dealer at wholesale in the municipality where it had thus stored its own gasoline for such use by the retail dealer, the amounts purchased by the retailer on orders from time to time being used to reimburse the company in kind, as distinguished from purchases for his own use for resale to his customers. The ease does not fall within the principles ruled in City of Colquitt v. Jeffords Oil Co., 170 Ga. 605 (154 S. E. 140). The verdict in favor of the company was unauthorized, and the court erred in refusing a new trial. Wofford Oil Co. v. Pitts, 178 Ga. 339 (173 S. E. 384).

2. Ho question has been raised by the municipality as to whether injunction to prevent the city authorities from enforcing the ordinance was a proper remedy.

Judgment reversed.

All the Justices concur, except Russell, C. J., who dissents.