City Council of Augusta v. Clark & Co. , 1905 Ga. LEXIS 700 ( 1905 )

Cobb, P. J.

The charter of the City of Augusta authorizes the city council to pass an ordinance requiring any person, firm, or corporation to pay a license tax upon any occupation, trade, or business carried on within the corporate limits of the city, provided that the occupation, trade, or business is not one already taxed exclusively by the State. Acts, 1896, p. 119. Under this power the city council is authorized to determine what occupations shall be made the subject of taxation. The charter does not require that the same tax shall be imposed upon every occupation. But the constitution requires that taxation shall be uniform upon the same class of subjects. All property within the territory of a taxing power shall be taxed, and none shall be exempted except that which the constitution in terms authorizes the -legislature to exempt. The constitution, however, does not require all occupations to be made the 'subject of taxation. Some may be taxed, and some may be left free from taxation, according to the discretion of the taxing authority. But when a given class are subjected to an occupation tax, all of that class must pay the same tax. Civil Code, §5883. It will thus be seen that the constitution recognizes the propriety of classifying subjects for taxation other than property, and leaves the matter of classification to the determination of the taxing power, whether it be the General Assembly or one of the subordinate public corporations created by it. The classification of occupations for taxation must not be purely arbitrary, but must be founded upon some valid and sufficient reason. Whether there is a reason for the classification is a question primarily entrusted to the judgment of the taxing power, but is subject to be reviewed by the courts; and whenever the classification is shown to be unreasonable and arbitrary, the courts will interfere, and prevent injustice from resulting from such a classification. It will be seen from the ordinance that a tax of $350 is levied upon money lenders of the class to which plaintiffs belong, as well as upon pawnbrokers and private banks. So far as the amount of the tax is concerned, these three occupations are placed in the same class. Chartered banks and other classes of money lenders are taxed in lesser and different amounts varying from $25 to $200.

There is no contention that the tax is excessive in amount, and therefore the decision in Morton v. Macon, 111 Ga. 162, is not pertinent to any of the questions raised in the present case. The question is whether money lenders of the class to which the plaintiffs belong are essentially of the same class as chartered banks, negotiators of loans, real estate agents, and lenders upon stocks and bonds. Taxes are imposed upon all these classes, but in different amounts. They are each separate and distinct occupations varying from each other in their nature as to the details of the business carried on; and simply because they all might be classified in the one general class of lenders of money is no reason why these different occupations might not be arranged in different classes for the purpose of taxation, and a different amount of tax placed upon each. If the classification is not subject to the criticism of being arbitrary and without foundation in any sound reason, the fact that a different amount of tax is levied upon the different classes is wholly immaterial where no question is made as to the tax upon a particular class being excessive in amount. It is within the power of a city council, under charter authority of the character possessed by the City Council of Augusta, to make one general class of all persons engaged in the business of lending money; and if is also in their power to subdivide this general class into further classes, so long as the subdivision is not wholly arbitrary and unreasonable. The subdivision of the general class of money lenders as set forth in the oi’dinance does not seem to be wholly without reason; and as the right to classify exists, and the right to determine the amount to be placed upon each class is reposed in the city council, we do not think the ordinance is subject to the criticism made upon it in the petition.

3, 4. It is contended that that portion of the ordinance levying a tax upon'money lenders is rendered void by reason of the provision therein that a violation of the usury laws shall work a forfeiture •of the license. The effect of this provision in the ordinance is to impose a penalty for usury. It purports to work a revocation of the license of one engaged in the business of lending money; and if the city has authority to require a license to engage in. this class of business, the forfeiture of this license is nothing more or less than a penalty for charging usury. The language of the ordinance indicates that this was the purpose and intent of this enactment. The laws of this State regulate the rate of interest to be charged, and provide what penalty shall be imposed for the exaction of usury. These laws are exhaustive upon this subject, unless there is something in the charter of the city expressly authorizing it to deal with the subject of a penalty for usury. It is not claimed that there is-in the charter any such authority. The ordinance, so far as it purports to impose a penalty upon money lenders for usury, is. absolutely void for want of authority in the city to enact that provision. But we do not think this provision in the ordinance vitiates-the whole ordinance upon the subject of taxation upon money lenders. The purpose of the ordinance was primarily for the raising of revenue, and not the punishment of usury, and that part of the ordinance which attempts to punish the usurer is such an insignificant part of the ordinance as a whole, and even of the particular provision, that it may be eliminated therefrom without affecting the validity of what .remains. Whether any part of a law can be upheld when one part of it is invalid depends upon whether the invalid part is. so connected with the scheme of the law. that it is to' be presumed that the lawmaking power would not have passed the-law without its inclusion therein. Of course no one will contend that the passage of the ordinance for the purpose of levying taxes-for the support of the city government was so dependent upon the-provision imposing a penalty for usury upon money lenders that without it the ordinance would not have been passed. See, in this-connection, Mattox v. State, 115 Ga. 212.

5. It is contended that the ordinance so far as it relates to money lenders is invalid for the further reason that the ordinance requires the money lender to file a bond in conformity with the State law, the State law being the act of 1904 (Acts 1904, p. 79.), providing for the regulation of the business of lending money on household goods, wages, etc. It is said that this act is unconstitutional, for various reasons set forth in the petition, and, the act being unconstitutional, as the ordinance requires a compliance with the act, the-ordinance is void for requiring something to be done which the city council had no right to require. It is unnecessary in this case to pass upon the constitutionality of the act. If it is constitutional, then the plaintiffs, so far as the character of the business regulated by the act is concerned, would be compelled to give the bond therein required, .whether there was anything in the ordinance of the City ■of Augusta upon the subject or not. The ordinance of the City ■of Augusta embraces a larger class of money lenders than those whose business is regulated by the act. But the ordinance embraces all of those who are embraced within the act. A moneylender engaged in such a business in the City of Augusta 'as would make him liable to the tax would therefore be subject to the regulations of the State law, and the ordinance simply requires that which, if the act is constitutional, the law requires. But suppose the act is unconstitutional, then in order to obtain a license from, the City of Augusta they would not be required to give a bond, because they ■could not be required to give a bond under an unconstitutional law. The city council had a right tq impose a tax upon the class of persons to which the plaintiffs belonged, and the tax as imposed is not subject to any of the objections made by them. They are therefore subject to the payment of this tax. They have not paid the tax required of them. When they have paid or tendered this tax, and a license is refused them on the ground that they have not given the bond required by the ordinance, they can then raise the question whether the act referred to in the ordinance is not unconstitutional. The question as to the constitutionality of the act of 1904 is therefore prematurely made. It may be that the city will not require the bond to be given. • If it does, then the plaintiffs may with propriety invoke a decision of the court as to the validity of that law. If that part of the ordinance requiring the bond to be given is invalid, its invalidity would not void the whole ordinance, for the reasons given in a preceding portion of this opinion, and until they have complied with that part of the ordinance which is unquestionably valid, they will not be heard to' question the constitutionality of the act of the General Assembly that is made a part of the ordinance by reference to the same.

Judgment reversed.

All the Justices concur.