Chevrolet Motor Co. v. City of Atlanta , 155 Ga. 43 ( 1923 )

Atkinson, J.

The question is made whether, after the com-: pany had received and paid for a license to engage in business as a “ dealer in ” automobiles, the administrative officers of the city could during the life of such license require the company to procure and pay for another license to engage in business as a “ dealer in ” automobiles, on the ground that the company was a “ dealer in” automobiles in two sepárale places in the city, one of which was a retail business and the other a wholesale business. The power to exact and'collect for all licenses to engage in business in the City of Atlanta during the period in question is provided for in the “Tax Ordinance for 1921-1922” of the city; and the decision of the above question must depend on a proper construction of the relevant provisions of that ordinance. Sections 1 to 7, inclusive, relate exclusively to ad valorem taxes. Section 8 relates to street tax and working the streets. Sections 9 to 22, inclusive, refer to license tax to engage in various kinds of business, having no reference to “ dealers in ” automobiles. Then follow:

“ See. 23. All persons, firms, or corporations engaged in any business, trade or occupation, specified below, in the City of Atlanta, shall be required to register their various business, trade or occupation, and obtain a license, for which he, she, or they shall pay the amount hereafter set opposite such business, trade or occupation, to be due and payable on the first day of July, 1921, and ending June 30, 1922, except automobiles, hacks, cabs, drays, transfer companies; license year to begin January 1st, 1921.

“ Sec. 24. Any person, firm, or corporation advertising by signs, cards, circulars, newspaper advertising, or otherwise, that any one is in a business of any kind, shall be held liable for the license required for such business.

“ Sec. 25. All persons, firms, or corporations doing business of any description or character whatever in said city, who are required to register and pay license therefor, who shall refuse or fail to register such business by the 5th day of July, 1923, or those taking out license quarterly, who fail or refuse to do so by the 5th day after the beginning of the quarter, shall have execution issued against them by the Clerk of Council, which shall be levied and collected by the Marshal as other tax executions. And any persons whose duty it shall be to register their business, and who shall fail or refuse to do so, may be arrested and brought before the Kecorder’s Court, and, on conviction, fined a sum not exceeding one hundred dollars and costs, or be imprisoned not exceeding thirty days, or both, in the discretion of the court, for each day such business has been done after the 5th of July, 1921, without registering the same.

“ Sec. 26. Any person or persons, firms or corporations, coming into the city for the purpose of engaging in any business for which a license is required by this ordinance, shall apply to the Clerk of Council and procure the same before commencing said business ; and on failure to do so, the Clerk shall issue fi. fa. and place the same in the Marshal’s hands for collection, the same to be collected as any other fi. fas. for license are collected. . .

“ Sec. 28. Different branches of business shall be carefully classified and defined as to what constitutes a legitimate line of goods for each particular business; and in every case where more than one of the pursuits, employments, or occupations, which by charter and ordinances are especially authorized to be taxed, shall be pursued or carried on in the same place by the same person at the same time, the tax shall be paid according to the rates severally prescribed by ordinances regulating the same, for'each pursuit, employment, or occupation, and for each different and separate line and character of goods especially enumerated ■ and in and the ‘ Schedule5 hereafter set out as part of Section 30.

“ Sec. 29. All licenses, permits, or other grants to carry on any business, avocation, or profession, for which a charge is made by the City of Atlanta, shall be subject to revocation in the discretion of the Mayor and General Council, without notice to the licenses with or without cause.

“ Sec. 30. In the following schedule of licenses the prices fixed are per annum, unless otherwise provided for. All licenses shall be paid for in advance, and are transferable by the Clerk of Council, except employment and labor agencies, and such licenses as are granted only by the Mayor and General Council, and shall issue for no less time than to end of current quarter, and the cost of the license for every business begun after the first day of any quarter shall be the same as if the business was begun on the first day of the quarter, except such licenses as are issued by the day, week, or month, as follows:” Then follows a long schedule denoting to what character of business and for what businesses licenses, may be issued, and the charge to be made for each. Included in such schedule is “ Automobiles, or similar machines, dealers in or agents for — $120.00.” The schedule does not elsewhere refer to “ dealers in ” automobiles, or purport to classify “ dealers in ” automobiles into " wholesale ” and “ retail,” though in the matter of dry goods, groceries, and several other kinds of business there are such classifications. It is stated that at the time the ordinance was passed there- were existing ordinances in the Atlanta City Code of 1910, which should be considered with the foregoing provisions of the ordinance of 1921-1922 in construing that'portion of the latter ordinance upon which the present action is founded; but those provisions of the City Code of Atlanta were not copied or fully stated in the brief of evidence contained in the bill of exceptions, and can not be considered, as this court will not take judicial cognizance of them.

The foregoing provisions of section 23, -and that part of section 30 of the tax ordinance for 1921-1922 which is copied above and relates to licenses to “ dealers in ” automobiles, control this case. All other provisions of the ordinance which are set out are stated for the purpose of throwing such light as they may on the construction of those sections. As already observed section 23 provides: “ All persons, firms, or corporations engaged in any business, trade or occupation, specified below, in the City of Atlanta, shall be required to register their various business, trade or occupation, and obtain a license, for which he, she, or they shall pay the amount hereafter set opposite such business, trade or occupation, to be due and payable on the first day of July, 1921, and ending June 30, 1922, except automobiles, hacks, cabs, drays, transfer companies; license year to begin January 1st, 1921.” Section 30 purports to make a schedule of persons from whom licenses to engage in designated characters of business shall be exacted, and the charge for each license. Included in the schedule is: “ Automobiles, or similar machines, dealers in or agents for —120.00.” The ordinance, being an exercise of á delegated power to issue licenses to engage in business, must be construed most strongly against the City. The purpose of the ordinance was to raise revenue by exacting licenses to engage in business; and in so far as it related to the matter of dealing in automobiles, it was not one contemplating police protection or requiring the business to be confined to restricted territory. It does not make any classification of wholesale and retail “ dealers in ” automobiles and require separate licenses for each, but it refers to " dealers in” automobiles as one class. In these circumstances the fact that one branch of plaintiffs business was wholesale and the other retail would not affect the case, because his first license as “ dealer in ” automobiles would under such circumstances apply to both wholesale and retail. Again, the language “ automobiles or similar machines, dealers in or agents for,” does not mention “ place ” of business, but uses the words “ dealers in ” and “ agents for,” indicating an intention to license the person, firm, or corporation engaged in selling automobiles, rather than the place at which they may be sold. In this form the ordinance would apply to a person having an established place of business for sale of automobiles, and to one without an established place of business; whereas it would not apply to the latter if the requirement of a license depended on the place at which the business was conducted. If the city had intended to require “ dealers in ” automobiles who conducted such business at more than one place to take out a license for each place of business, no doubt that could have been done by an appropriate ordinance. Kecly v. Atlanta, 69 Ga. 583; Wilder v. Savannah, 70 Ga. 760 (48 Am. B. 598). But such a requirement does not seem to have been contemplated, and was not possible under the ordinance being considered. The other sections of the ordinance set out above do not require a different conclusion. The ordinance did not authorize the administrative officers of the city to require the additional license. The plaintiff did not have an adequate remedy at law; and the trial judge erred in refusing an injunction. City of Atlanta v. Jacobs, 125 Ga. 523 (54 S. E. 534). Judgment reversed..

All the Justices concur.