Coca-Cola Co. v. City of Atlanta , 152 Ga. 558 ( 1922 )

Blais, J.

1, “ For every right there shall be a remedy.” Civil Code, § 5506. The right of the municipality in this instance, as set forth in its petition, is to ascertain the names of persons residing within its corporate limits, who are owners of shares of the corporate stock of the Coca-Cola Company, a Delaware corporation, together with the number of shares owned by each person, in order that the'petitioner may assess and collect the taxes that are due or may become due on these shares. The averment is that the prescribed legal remedy has proved inadequate, in that the owners of these shares have failed and refused to return them for taxation, or even disclose the fact of their ownership. Bequest to the corporation and its officers, who -are parties to this case, for the information necessary to enable the municipality to exercise what it conceives to be its right and duty in assessing these shares for taxation, has been met with a refusal. In so far as now appears, the -petitioner has exhausted its legal remedies; and unless some extraordinary remedy can be made available, the right of the municipality to tax these shares must be lost, and that too without an opportunity being afforded it of showing that they are subject to taxation. Conffonted with this situation, the municipality brought its petition for discovery from the defendants of such facts only as will enable it to bring in question the liability of these shares for taxation. One of the questions is, can the petition be sustained ? The corporation and its officers strenuously deny the right of the petitioner to this discovery; but they do not suggest any other remedy, legal or equitable, that is, or might be made, available to the petitioner. The elaborate brief of their counsel does not point the petitioner or the court to any other place where, or method by which, the facts desired can be obtained. Their attitude is in apparent denial of the postulate which heads this opinion. The court is therefore confronted squarely with the issue, is equity equal to the necessities of the situation, and will it come to the aid of the petitioner by decreeing the discovery prayed ?

Discovery is not a stranger to our procedure. It is written into our constitution that the legislature “ shall provide, by law, for reaching property of the debtor concealed from the creditor.” Civil Code, § 6387. “ Creditors are a favored class under our law. The second section and sixth paragraph of the bill of rights confers upon the legislature power to provide for the punishment of fraud, and declares, in unmistakable and unequivocal terms, that it shall provide by law for reaching property of the debtor concealed from the creditor. This fortifies existing legislation, upon the subject, which directs the courts to favor the rights of creditors, and to afford them every remedy and facility to detect, defeat, and annul any effort to defraud them of their just rights.” Hood v. Perry, 75 Ga. 312. A whole chapter of our code is devoted to discovery in equity. Civil Code, § 4543 et seq. Another is devoted to discovery at law. Civil Code, § 4550 et seq; In a'measure, every garnishment calls for a discovery, and when necessary answers may be enforced by attachment. Garden v. Crutchfield, 112 Ga. 274, 278 (37 S. E. 368). Under certain contingencies an agent may be compelled to discover against his principal. Ballin v. Ferst, 55 Ga. 546 (6). Judgment and attaching creditors are entitled to-discovery from corporations, with reference to their stockholders, on demand and without the aid of legal process. “Upon demand by any sheriff, constable, or other levying officer of this State, having in his hands any execution or attachment against any person who is the owner of any shares or stock of said bank or joint stock company, upon the president, superintendent, manager, or other officer of any corporation or joint stock company having access to the books thereof, said' president, superintendent, manager, or other officer aforesaid shall disclose to said levying officer the number of shares and the par value thereof owned by the defendant in said execution or attachment, and, on refusal to do so, shall be considered in contempt of court and punished accordingly.” Civil Code, § 6035. This statute provides a remedy by discovery in favor of the ordinary creditor without lien, where his debtor is subject to attachment and his shares to seizure thereunder. In the instant case the petitioner avers that it has a lien upon the shares sought to be disclosed for the taxes due thereon, and that these shares are subject to be seized and sold therefor. It is not necessary to hold that the present case is within the letter of this statute, or that the officers of this corporation were subject to attachment under its provisions. It is sufficient for the purposes of the present litigation to declare that the policy of our law is to discover, disclose, reveal all properties of debtors in so far as it may be necessary to secure the rights of creditors, and that it is the duty of the courts to interpret statutes liberally to the end that this policy of the law be not defeated. If there be exceptions to the rule, it is not because the complainant happens to be the State, a county, or municipality of this State.

2. Plaintiffs in error contend that the court was without jurisdiction to decree the discovery prayed, because no other relief was sought, and that “ discovery alone ” can not be decreed except when “ ancillary to some other civil proceeding;” citing Civil Code, § 4543. We may concede that their construction of this code section is the proper one, but disagree with them in its application to the facts of this case. What is a proceeding? Some act, or acts, done iu furtherance of the enforcement of an existing right, real or imaginary. A proceeding may be by petition in a court of competent jurisdiction or it may be by a summary remedy prescribed by statute. What is the purpose of the discovery prayed in the instant case? First, that the petitioner may assess the shares of stock of this corporation, discovered to be owned in the City of Atlanta, for taxation; secondly, that executions may issue on these assessments against these shares or their owners for their respective taxes; thirdly, that the shares may be seized, advertised, and sold to satisfy the executions so issued. In our opinion these several acts constitute a “proceeding,” an effective legal proceeding as provided by the laws of this State. It might have been provided by statute that tax delinquents should be sued as debtors upon accounts, but the genius of our law has devised a more speedy, efficient proceeding. How efficient this proceeding is we need not recite, further than to say that it is adequate under all conditions, and to all situations, reaching back after the past as well as laying hold on the present. “ There' is ample provision in the laws of this State for proceeding against one who was a tax defaulter in the years that are past. As we have interpreted our laws, they afford ample machinery, consistent with constitutional provisions, for reaching every species of property that is subject to taxation at any time in the past that the taxing power is authorized to proceed for the collection of back taxes. There is no fault in the law.” Ga. R. &c. Co. v. Wright. 125 Ga. 589, 601 (54 S. E. 52). Judge Cobb speaks of our laws for enforcing the payment of taxes as machinery, and when in operation as “proceeding.” The purpose of the petition in this case is to uncover properties alleged to be liable for taxes, in order that other proceedings may be brought to subject them to the payment of taxes due on them. This petition seeks no recovery of taxes, but is in aid of and ancillary to other proceedings to be brought for that purpose. Without this preliminary relief, the other proceedings cannot be brought, and the municipality must fail in its efforts to collect the taxes on these shares. Discovery is a favored jurisdiction of equity, and it will not be denied where the effect of such denial will be to defeat public justice, unless the plain letter of the law so demands. That the relief prayed is within the letter of our law as well as its spirit, we entertain no sort of doubt. The petitioner being entitled to the discovery prayed, there is no merit in the contention that the plaintiffs in error are mere witnesses.

3. The further contention of plaintiffs in error is that the municipality is not entitled to the discovery prayed, for the reason that the shares of the Coca-Cola Company are not subject to taxation by the City of Atlanta. We state their contention from the brief of their counsel, as follows: “Inasmuch as the corporation has property within the City of Atlanta on which a tax is paid, the stock of the corporation owned by a resident is not subject to taxation.” In support of this contention, the argument is offered “that no distinction is [to be] drawn between a domestic and a foreign corporation with reference to where it was chartered; that both a -foreign and a domestic corporation are in the same class in so far as the place of their creation is concerned, and that stock is exempt from taxation without regard to whether it was issued by a foreign or a domestic corporation, if the capital of such corporation was returned by the president; capital meaning the corporate assets.” Further on we read that “The classification which now exists is the broad and fair one, and consists of whether the corporate property lies within this State and is returned for taxation. If it does, and is, then its shares of stock are exempt.” The logical conclusion to be drawn from these statements is that the place of incorporation is not a material fact in determining the taxability of the shares of a corporation; and the brief so contends.

It will be noted that these excerpts contain no definite statement (nor does the brief elsewhere) as to what per cent, of the assets of a corporation must be located within this State, to entitle it to be classed as domestic. The fair inference to be drawn from the first excerpt is that if any part of the assets of a corporation is located within this State, it is domestic; while a reasonable interpretation of the last two seems to require that all the properties of the corporation be located in this State. Before we can judge of the soundness of a rule, it is necessary that we know what the rule contended for is. If the place where chartered is immaterial, and the all-controlling question is the location of the assets, what ratio of assets, within and without the State, will make the corporation domestic or foreign? Must all the assets be located within this State, to classify the corporation as domestic? Or is the majority rule of democracies sufficient for that purpose? If either supposition states the rule, it would seem that the Coca-Cola Company is not domestic; for it is agreed that less than 15 per cent, of its assets are within this State. Is a corporation, chartered and organized in Delaware, having 1 per cent, or 15 per cent, of its assets in Georgia, domestic in this State, so that its shares owned here are exempt from taxation? If so, it is conceivable that such a corporation may be domestic to a large number of States at the same time, and also may avoid the taxation of its shares altogether by incorporating in a State where it has neither stockholders nor assets, and. bj^ acquiring a small amount of taxable properties in each of the States where its stockholders may reside. It is also conceivable that the shares of corporations having many millions of assets may be largely owned in this State while only an infinitesimal portion of the properties of such corporations is located within the State. In the event of such a contingency, under the con.tentions of the plaintiffs in error, the State would be restricted to taxing the assets to be found within its borders, while the great wealth represented by the shares owned in this State would be exempt. In our opinion the contention is unsound and cannot be sustained under the constitution and laws of this State.

What are the requirements of our constitution and laws? That all properties real and personal are liable to taxation. Park’s Civil Code, §§ 1002, 6553. There are certain exceptions to this general rule, not involved here. Park’s Civil Code, § 6554. Stocks are property and are valuable as the assets behind the shares make them so. The brief for plaintiffs in error concedes that corporate shares, owned in this State, are subject to taxation when the corporation is chartered, and the assets are all located, without this State. That is to say, the shares of such corporations when so situated are taxable property, and that it is the right and duty of the State, counties, and municipalities, to tax them when they are owned within their respective boundaries. And this right of taxation goes to the full value of the shares in the markets. The right is not impaired by or because the corporation may own some small taxable properties within the State. If, so, the right of taxation of such shares, under the constitution and laws, would be dependent upon the absence of corporate assets from the State, and the right of such taxation would be lost by the presence of suco assets within the State. Such a scheme of taxation would compel the State to accept the shadow, when but for the presence of the shadow it would be entitled to the substance. Such a scheme of taxation would put it in the power of individuals to defeat tlie right of taxation by shifting the assets of the corporation from one State to another, or by maintaining nominal assets within a jurisdiction for that purpose. In our opinion, the right of taxation cannot be lost in that way, but the State has the right to tax such shares, as well as the corporate assets, that may be found within the jurisdiction of the State. The Supreme Court of the United States, in Wright v. Louisville & Nashville Railroad Company, 195 U. S. 219 (25 Sup. Ct. 16, 49 L. ed. 167), in discussing the questions now before the court, said: “ It certainly seems intended to tax once, at least, all property which can be come at in any way,”' That court accordingly held that shares of stock in a foreign corporation owned by a domestic corporation of this State were taxable as the property of the latter. Commenting on the Constitution and laws of Georgia, that court said: "We do not understand and cannot believe that the Supreme Court of the State would deny the power of the Legislature under the present Constitution to tax stock.” We do not understand that the Legislature has intended or attempted to exempt the shares of such corporations from taxation when owned in this State.

In our opinion the question now involved is controlled by the decision of this court in Georgia Railroad &c. Co. v. Wright, 125 Ga. 589 (supra). The ruling in that case was that the legislature had put the shares of corporations of this State in one class and the shares of corporations of other States in another class; that the shares of the former are - exempt, but that the latter, when owned in this'State, are liable for taxation. When the classification is determined, all shares belonging to that class fall within the rule applicable to it.

In City of Albany v. Brown, 137 Ga. 796 (74 S. E. 518), this court held that shares of domestic corporations were not taxable by municipalities, and that it was not material that the assets of the corporation were for the most part located without the limits of the municipality.

Plaintiffs in error deny that such a classification as indicated above is authorized by the laws of Georgia, and say that if such has been made, it is "clearly in conflict with both the State and Federal constitutions.” The same contentions were made in the Wright case, supra, and the decision there made is adverse to the plaintiffs in error. It was there held that the legislature was within its power in exempting shares of Georgia corporations and taxing the shares of corporations of other States; that it had the power to tax shares of domestic corporations, but was not required to do so, and failing to tax them was not, as against the owners of shares of corporations of other States, violative of the provisions of either constitution. Judge Cobb pointed out that "the constitution of this State imperatively .requires that all property of every nature whatsoever within the territorial limits of this State shall be subjected to taxation, except that which the constitution in terms declares the General Assembly may in their discretion exempt from taxation. Atlanta National Building & Loan Asso. v. Stewart, 109 Ga. 80 (2). [35 S. E. 73]. A single tax upon any species of property will satisfy tbe demands of the constitution. A tax law will not be construed to tax the same propery twice, unless such a conclusion is constrained either by the express provisions of the law or by necessary implication. Gray on Lim. .Tax. Power, § 1366. Many, if not all, laws imposing taxes upon property contain provisions which in effect tax some species of property more than once. There are in the tax laws of this State instances where the thing which gives value is twice taxed. Wherever there is the imposition of a tax upon one who holds the tangible article of inherent value, as well as upon another who holds merely the symbol which derives is value solely from the tangible article, the same property is twice taxed. The property of a corporation is that which gives value to its shares. If a tax is levied upon the property in the hands of the corporation, and a tax is levied upon the value of the shares in the hands of the shareholders, that which gives value to the holdings of the corporation and to-the shares of the shareholder is unquestionably subjected to a double burden. While shares of stock are property in the hands of the shareholder, they have no inherent value, and derive their sole value from the tangible or other property which is owned by the corporation. The taxation of both the property of a corporation in the hands of the corporation, and the value of the shares in the hands of the shareholders, is manifestly an instance where the same property is twice taxed. It is double taxation in a sense, but not that species of double taxation which would be void. It is permissible, but not compulsory. Gray on Lim. Tax. Power, § 1372 et seq; Commonwealth v. Fall Brook Co., 156 Pa. St. 488 (26 Atl. 107); Commonwealth v. Lehigh Co., 162 Pa. St. 603 (29 Atl. 664).”

The kind of double taxation referred to by Judge Cobb may exist with reference to the owners of shares in corporations of other States. If their shares are owned in this State, the law is emphatic that they are liable for taxation; if such corporations own properties in Georgia, the statute is equally mandatory that they bn returned for taxation. Where there is a concurrence of ownership of properties by such corporation and an ownership of its stocks, in this State, the double taxation spoken of by Judge Cobb results; but it is within the law and not beyond it. If such double taxation is unduly burdensome, the remedy pointed out by Judge Cobb “ is either a change of residence or a change of investment.” Another alternative would be, to corporate or reincorporate in Georgia. A remedy should not .be sought in a refusal to pay lawful taxes.

The constitutional questions made are not open ones. “ The General Assembly not being required by the constitution to impose a tax on shares of stock in domestic corporations where the property of such corporations is taxed in the hands of the company, the failure of the General Assembly to impose such a tax, while imposing a tax upon shares in foreign corporations, is not, as to the owners of shares of the latter class, a violation of those provisions of the constitution of Georgia which require that protection to property shall be impartial and complete, and that all taxation shall be uniform upon the same class of subjects and ad valorem on all property subject to be taxed within the territorial limits of the taxing authority, nor of that provision of the fourteenth amendment to the constitution of the United States which declares that no State shall deny to any person within its jurisdiction the equal protection of the laws.” Wright case, supra, 125 Ga. 590 (10).

Since the present case was submitted to this court, the Supreme Court of the United States has reaffirmed what it had previously decided, that “ Exemption from double taxation by one and the same State is not guaranteed by the 14th Amendment (St. L. Sw. R. Co. v. Arkansas, 235 U. S. 350, 35 Sup. Ct. 99, 59 L. ed. 265); much less is taxation by two States upon identical or closely related property interests falling within the jurisdiction of both forbidden.” Anderson v. Durr, U. S. (42 Sup. Ct. 15). Anderson, residing in Ohio, owned a membership, called a seat, in the New York Stock Exchange. The Ohio authorities assessed this membership for taxation, and he filed his bill to enjoin the collection of the tax. The Supreme Court of Ohio decided against him, as did also the Supreme Court of the United States. '

In St. L. Southwestern R. Co. v. State of Arkansas, 235 U. S. 350 (35 Sup. Ct. 99, 59 L. ed. 265), the court said: “Nothing in the 14th amendment to the Federal constitution imposes any ironclad rule upon the States with respect to their internal taxation, or prevents them from imposing double taxation or any other form of unequal taxation, so long as the inequality is not based upon arbitrary discriminations.”

In Georgia R. Co. v. Wright, 124 Ga. 609 (supra), this court said: “There is no arbitrary classification of shares in a foreign railroad corporation for taxation in this State.. Shares in domestic-corporations are taxed, not in the same manner, but to a like extent with shares in foreign corporations. They are taxed indirectly, through the taxation of the corporation.”- The classification in Georgia, whereby the shares of certain domestic corporations are exempt from taxation, and the shares of corporations of other States are liable for taxation, is based upon the assumption that, as a general rule, the assets of domestic corporations are located within this State, and will be returned for taxation, and that the assets of corporations of other States are located without, and are not liable for taxation in his State. That there are exceptions where this assumption does not hold good — domestic corporations having assets without, and foreign corporations having assets within the State — will not suffice to make the classification unlawful, or render it violative of the constitution of this State, or that of the United States, in any of the particulars assigned.

The court did not err in overruling ,the demurrers or in entering the decree.

Judgment affirmed.

All the Justices and Judges participating concur.