Southern Express Co. v. Rose Co.

Fish, C. J. (After stating the facts.) 1. One of the contentions of the express company is, that the applicant for the writ of mandamus had an adequate and complete remedy at law by an action for damages, without resorting to the extraordinary writ of mandamus, and therefore the writ should have been denied. In support of this contention, the plaintiff in error cites Hutchinson on Carriers, §115b, to the effect that, “If the carrier refuses without lawful reason to accept and carry goods, the owner may maintain an action against the carrier for the damages sustained by such wrong — 585 — ful refusal. This remedy by action is usually adequate to secure the plaintiff’s rights, and therefore, in accordance with well-settled principles, mandamus will not lie to enforce the performance of the ■duty.” In the same section, however, this author sajrs: “Where the ■duty was expressly imposed by State statute and by the United States interstate commerce act, and the refusal was continuing and-the injury irreparable, a mandatory injunction was granted to secure performance;” citing Chicago Railway Co. v. Burlington Railway Co., 34 Fed. 481. We are of opinion that, even under the rule as laid down by this author, the judge below properly held that 'mandamus would lie in the present ease. For, as we shall presently ■■see, the duty of the express company which the petitioner sought to ■enforce by mandamus is one which, in this State, is expressly imposed by statute, and we think it is obvious, from the evidence, that the damages which would ensue to the petitioner by the continued refusal of the express company to transport intoxicating liquors, from Atlanta to Lawrenceville would- be incapable of being ascertained. It is clear, however, that the general rule laid down by Hutchinson is not applicable in this State. The Civil Code, §2&78, provides: “A common carrier, holding himself out to the public as such, is bound to receive all goods and passengers offered that he is able and accustomed to carrjr, upon compliance with such reasonable regulations as he may adopt for his own safety and the benefit of the public.” Here we have a public duty of the common carrier defined and imposed by statute. Section 4869 provides: “A private person may by mandamus enforce the performance by a corporation of a public duty as to matters in which he has a special interest.” Here the right to enforce by mandamus the performance of this public duty by a corporation is given to a private party having a special interest in the matter, and this right is clearly not dependent upon his being without adequate remedy by a suit for damages for its non-performance in his behalf. He has the right to compel the performance of the public duty, and is not compelled to seek redress in damages for its non-performance at his instance. The defendant admitted that it was chartered under the laws of this State as an express company. “An express companyf which pursues con-^, tinuously, for any period of time, the business of transporting goods'/* packages, etc., is a common carrier.” Southern Express Co. v. Newby, 36 Ga. 635; Bank of Kentucky v. Adams Express Co., 93 — 586 — U. S. 174; Buckland v. Adams Express Co., 57 Mass. 124; Kirby v. Adams Express Co., 2 Mo. App. 369. In the present case, therefore, the respondent was under the public duty of receiving and transporting all goods, which it was able and accustomed to carry, which were offered to it for transportation, upon compliance by the intending shippers with its reasonable rules and regulations. It admitted in its answer that it was “engaged in transporting liquors, wines, and beers, when properly packed, from stations on its line to other stations on its line, when not prohibited by law;” and “that up to the 25th day of March, 1905, it was engaged in transporting from stations on its line to Lawrenceville, Gwinnett county, Georgia, for such persons as should so demand its services, packages of liquors, wines, and beer when properly packed and when delivered on straight shipments as opposed to collect-on-delivery shipments;” and “that it was up to said date engaged in the business of accepting from the said B. M. Bose Company packages of wines, beer, and liquors at its place of business in the City of Atlanta, Georgia, for shipments in the manner above described to Lawrenceville,” Georgia. It is obvious, therefore, that the writ of mandamus absolute was properly granted, unless some other contention of the express company is meritorious. 2. Another contention of the express company is, that if the writ of mandamus would lie at all, Exum, who had purchased the liquor from B. M. Bose Company and paid for it, and to whom, therefore, it belonged when that company offered it to the express company for shipment to Lawrenceville, was the proper party to apply for the writ, and the only one in whose behalf it could be issued. We think this contention is fully answered by the mere reading of the Civil Code, §4869, which is quoted above. It seems very evident to us that a wholesale liquor dealer located in Atlanta, which, as the evidence shows, had been for many years engaged in selling, in Atlanta, liquors to persons living in Lawrenceville and vicinity, upon orders therefor received by mail, and shipping the goods to the purchasers at Lawrenceville by express, has a special interest in seeing that the express company shall perform its duty by accepting from such dealer shipments of liquors to its customers in Lawrence-ville and transporting and delivering the same to the consignees thereof. Its interest in the matter is far greater than that of any one of its Lawrenceville customers, because its business dealings — 587 — with people living in Lawrenceville and vicinity would be greatly restricted and diminished if it was denied the right to ship its goods, by express, to its customers at Lawrenceville. And if such right could be lawfully denied to the petitioner by the express company, it could, for like reasons, be denied to the petitioner by a railroad com-panjq so that the petitioner would be practically without the means, of shipping its goods to Lawrenceville. 3,4. Coming down to the merits of the case itself, the defense' set up by the express company was, that it had not paid the license-tax required by the above-quoted municipal ordinance for delivering or causing to be delivered, in the city of Lawrenceville, any-package containing wine, whisky, beer, or other intoxicating liquor-* and it would therefore subject itself to prosecution and punishment-by undertaking to transport such liquors to Lawrenceville and there-deliver them to the consignees thereof. It further contended that, the ordinance requiring the payment of one thousand dollars for a, license to deliver intoxicating liquors in Lawrenceville was, in effect, prohibitive and was so intended; and that upon the trial it was admitted that the gross sum received by the express company for the-shipping of intoxicants to Lawrenceville for one year is $469.50.. There was no merit in this defense, as, in our opinion, the municipal ordinance in question is invalid, as the mayor and council of the-City of Lawrenceville had no power under the charter- of the city to-pass it. Authority to enact this ordinance is claimed under each of" several sections of the city’s charter, which is found in Acts of 1904, p. 489 et seq. One of these is section 1, wherein it is provided, that-the city “may sue and be sued, contract and be- contracted with,, plead and be impleaded, have and use a common seal, make and!. enact, through its mayor and council, such ordinances, rules, regulations, and resolutions for the transaction of its business and the-welfare and proper government of said city as mayor and council may deem best, and which shall be consistent with the laws of the-State of Georgia, and the United States.”" Another is section 32,. which provides, “That the mayor and council of said city shall have full power and authority to .pass all by-laws and ordinances for the prevention and punishment of disorderly conduct and- conduct liable to disturb the peace and tranquility of any citizen- or citizens thereof,. and any other by-law, regulation, and ordinance that they may deem proper for the security of the peace, health, order-, and- good govern — 588 — ment of said city.” Provisions substantially the same as those here Relied on are found in most, if not all, of the municipal charters of this State. They are usually embraced in what is commonly called the “general welfare” clausé, and they deal with the police and not the taxing power of the municipality. Construing the ordinance in ■question as a taxing or licensing ordinance, the power to pass it can :not be derived from these sections of the city’s charter. The power ‘“to pass all by-laws and ordinances for the prevention and punish.ment of disorderly conduct and conduct liable to disturb the qieace ■and tranquility of any citizen or citizens, . . and any other bylaw, regulation, and ordinance that they may deem proper for the security of the peace, health, order, and good government of said city,” or, in the language of section 1, “the welfare and proper government of said city,” does not include the power to levy a tax upon property or upon the carrying on of a business or vocation within the city. The rule is well established that municipal corporations ■can levy no tax, general or special, upon the inhabitants of the municipality or upon property therein, unless the power to do so be plainly and unmistakably conferred upon them by the State. Albany Bottling Co. v. Watson, 103 Ga. 503; 2 Dill. Mun. Corp. (4th ed.) 763; Cool. Tax. (2d ed.) 678. As was said by Mr. -Justice Little in the above-cited case, “The power to tax is incident to the State. Neither counties nor municipal corporations of •any character possess this power to any extent unless conferred by the constitution or laws of the State, and therefore such power can only be exercised when delegated in plain and unmistakable terms, ■or when it results by necessary implication from other powers expressly granted. 25 Am. & Eng. Ene. L. 580. The exercise of this power being so limited and restricted, the burden is on every politi■cal division of the State, .which demands taxes from the people, to ¡show the authority to exercise it in the manner in which it has been imposed.” It is obvious that no such power is plainly and unmistakably conferred by the charter sections under consideration. ' It is contended, however, that this ordinance was a valid exercise ■of the police power conferred upon the municipality by section 32 ■of the charter. A similar contention was unsuccessfully made in Henderson v. Heyward, 109 Ga. 373, which involved the validity of. an ordinance of the City of Cartersville, which undertook to make :it penal for one who had lawfully purchased, without the limits of — 589 — the municipality, alcoholic liquors, to receive the same therein from any common carrier or person, without paying a specific tax of a designated amount for the privilege of so doing. The “general welfare” clause of the charter of the city was as follows: “The mayor and aldermen shall have power to pass all ordinances that they may consider necessary to the peace, good order, health, prosperity, comfort and security of the city and the citizens thereof, not inconsistent with the constitution and laws of this State, and of the United States.” It will be seen that these provisions are substantially the same as those of section 32 of the charter now under consideration. The power conferred upon the municipal government of the City of Cartersville by the above-quoted section or clause of its charter is no more restricted than that conferred upon the municipal authorities of the City of Lawrenceville in the charter provisions with which we are dealing. The qualification of the power, in the Cartersville charter, by the words, “not inconsistent with the constitution and laws of this State, and of the United States,” would have been necessarily impliéd, if it had not been expressed ; and the same qualification of the power to pass ordinances, etc., “for the welfare and proper government of [the] city” appears in section 1 of the charter of Lawrenceville, .although not expressed in section 32 thereof. In reaching the conclusion announced in the Cartersville case, this court held, “that a municipal corporation can not, without express legislative authority so to do, pass any ordinance making penal the buying of alcoholic liquors from one lawfully authorized to sell the same;” and that it therefore followed, “that the reception by the purchaser of liquor so. bought is not an act which can be legitimately dealt with by the. authorities of a municipal corporation as an act within the police, power of the State, in the absence of express power so to do.” In that ease, as we have seen, the municipal authorities undertook to. prohibit the reception, in Cartersville, of liquors lawfully purchased elsewhere; and it was held that this could not be done. In the present case, if we construe the ordinance in question as being prohibitory in its purpose, the municipal authorities, of Lawrence-ville have undertaken to prohibit the delivery, in that city, of liquors, lawfully purchased elsewhere. It is obvious that under the decision in the Cartersville case they could not lawfully do this; for to pre590 went the delivery would be to prevent the reception, as the one can 'not occur, without the other. Another of the sections of the city charter invoked to sustain the validity of the ordinance is section 48, the language of which is as ^follows: “That said mayor and council shall, in the exercise of their police powers, have full power and authority to pass such -ordinances as they may think proper to more effectually prohibit the •illegal sale of spirituous, vinous, malt, or intoxicating liquors within ■the corporate limits of the city of Lawrenceville, and to that end may provide ordinances punishing any person or persons keeping in 'said city spirituous, vinous, malt, or intoxicating liquors for-illegal ¡sale.” The contention that this section of the city charter conferred upon the municipal authorities power and authority to pass the ordinance in question scarcely deserves serious discussion. The •ordinance does not deal with the sale of intoxicating liquors within 'the limits of the city, nor with the keeping, in the city, of such liquors for sale. It is admitted that the sale of such liquors within •the City of Lawrenceville, or elsewhere in the county of Gwinnett, -is prohibited by law; and the manifest purpose of the ordinance, ■construed as an effort to exercise the police power, was to prevent the delivery in Lawrenceville of liquors lawfully purchased outside ■of Gwinnett county. The other sections of the municipal charter which are invoked to support the ordinance are sections 28 and 30; and here the effort is to uphold the ordinance as a valid exercise of the power of the municipal authorities to impose, and enforce the payment of, license taxes upon any business, profession, or vocation carried on within the city. The first of these sections provides, “That said mayor and council shall have full power and authority to require any person,” etc., “engaged in or carrying on, or. who may engage in or carry on, any trade, business, calling, vocation, or profession within the corporate limits of said city, . . 'to obthin license to carry on such business or profession and pay for such . . license such amount as the mayor and council may by ordinance prescribe.” It also provides that, “Said mayor and council may provide by ordinance for the punishment” of any one “required to pay such license, who [engages] in or [offers] to engage in such business or occupation before paying such tax, or taking out such license. Section 30 confers upon the municipal authorities power to license billiard tables, — 591 — "theatrical companies, and other enumerated things, to place a tax ■upon brokers, and to regulate markets, etc., auctioneers, itinerant ■traders, etc., and concludes as follows: “Also all solicitors or canvassers, selling goods or wares by sample at retail to consumers; and .all other establishments, businesses, callings, or vocations which under the constitution and laws of this State are subject to taxes.” The power claimed for the city under section 28 is the power to impose a license tax upon every person, etc., “who may engage in or ■carry on any trade, business, calling, vocation, or profession within the corporate limits of said city;” and the power relied on under -section 30 is the power to impose such a tax upon all “establishments, businesses, callings, and vocations which under the constitution and laws of this State are subject to taxation.” It is clear that 'the mere delivery, by a common carrier, of goods of a particular class ’to the consignees to whom they have been shipped is not a trade, profession, or establishment. Is it a business, calling, or vocation? "We think not. It is termed in the ordinance in question a business, and the effort is made to tax it as such. But it seems very ■clear to us that the mere delivery of goods of a particular class, at "the point of destination, by a common carrier, to the consignees of -such goods is not a business engaged in by the carrier, but a mere incident to the carrier’s business. In and of itself, it is no more a business than is the measuring of calico, homespun, or silk by a retail dry-goods merchant, when he sells the same to his customers, ■or the delivery by such merchant of the cloth to the purchasers thereof a business conducted by him. It is no more a calling or vocation than is the mere delivery of shoes by a shoemaker, or ■plows by a blacksmith, to the customers for whom the shoemaker ■or the blacksmith has made them. It is but a fragmentary part of the business of the carrier. If the city has the power to arbitrarily declare that the mere delivery by a railroad or express company of intoxicating liquors, within its limits, is a business and to impose a license tax upon it as such, then it must necessarily have 'the power to deal in a like manner with the mere delivery by such carriers of each and every other class of goods transported by them for the public. Under such a construction of the city’s power to tax a business, it could separately tax, as a separate business, the -delivery by a common carrier of dry goods, of shoes, of drugs, of 'hardware, and so on and on, through the vast variety of goods han592 dlecl by the carrier, making, for the purposes of taxation, a separate-business of the delivery of each variety of goods. Further, if the city can, for the purposes of taxation, make a separate business of' the mere delivery of a particular kind of goods by a common carrier, it can make a separate business of every other incident involved in the carrier’s handling of such goods, within the incorporate limits. For instance, it could make a separate business of the receiving for-shipment of each variety of goods, another of the mere keeping of each kind of goods until transported or delivered, and still another-of the transporting, within the limits of the municipality, of each kind of goods to or from the warehouse or storeroom of the carrier. Under this construction of the power of the city to tax a business,, there would be practically no limit whatever to the divisions and subdivisions which it might make of a common carrier’s business-for the purposes of taxation. Where a municipality is simply given the power to impose a license tax upon a business, it can not divide-such business into its constituent elements, parts, or-incidents, and levy a separate tax on each or any element, part, or incident thereof. The case of Hewin v. Atlanta, 121 Ga. 723, is directly in point here. There it was held: “(1) That the furnishing of trading stamps by a merchant to his customers did not constitute a business separate- and distinct from that of selling merchandise, but was merely an instrumentality in or an incident to that business, being in its nature-incapable of such separate existence as to constitute of itself a business in either a commercial or a legal sense. (2) -That authority in a municipal charter To make just and proper classification of business for taxation,’ and To classify business and arrange the various. business, trades, and professions carried on in said city into such classes of subjects for taxation as may be just and proper,’ did not. authorize the passage of an ordinance separating from the business of selling merchandise the incident of furnishing trading stamps for the purpose of increasing the sale of merchandise and classifying the furnishing of such stamps as a separate business subject to taxation. (3) That, whether the furnishing of the trading stamps, be treated as a gift or as a part of the contract of sale of the merchandise which is delivered at the time the stamps are furnished, the furnishing of the stamps does not constitute a business subject-to be taxed under charter authority to classify and tax business. (4) That the word ‘business’ in a commercial or legal sense means-. — 593 — something clone-or carried on for a livelihood, profit, or the like.” If the City of Atlanta, which not only “has,” to quote the language of Mr. Justice Cobb in the opinion in that ease, “authority under its charter to impose a tax upon any person carrying on ‘any trade, business, calling, or avocation, or profession5 within the city,” but “has also power ‘to classify business and arrange the various business, trades,, and professions carried on in said city, into such classes of subjects for taxation as may be just and proper/ ” could not, for the purpose of taxation, make a separate business of a mere incident to the business of a retail merchant, it necessarily'follows that the City of Lawrenceville can not, under the power granted in its charter, make a separate business of the mere delivery by a common carrier of a particular class of goods and levy a license tax thereon. TJnder the view we take of the case it is unnecessary to discuss the question as to the power of the municipality of Lawrenceville to make a reasonable and proper classification of the business of common carriers for the purpose of.taxation. The ordinance of the City of Lawrenceville involved in this case is void, as the municipality had no power, under its charter, to enact it. Having reached this conclusion, for the reasons above given, it is unnecessary for us to determine whether the ordinance is, as contended by the defendant in error, violative of the interstate-commerce clause of the constitution of the United States. ■ The express company, however, contends that even if the municipal ordinance in question be invalid, it can elect to obey it, and refuse to accept, at its office in the City of Atlanta, shipments of intoxicating liquors consigned to the owners thereof at' Lawrenceville. As was said by Mr. Justice Little, in Southern Express Company v. State, 107 Ga. 670, 672, “The plaintiff in error'is a common carrier, and as such is bound to receive and transport articles and property offered it for shipment under reasonable rules and regulations. In the case of Fears v. State, 102 Ga. 274, this court held that notwithstanding the local option liquor law was in force in a particular county, a right of property in spirituous and malt liquors existed in tliat county. Being property, it was, under existing law, the duty of a common carrier to receive and transport it for a reasonable hire, according to the direction of the owner or sender of the same, unless such transportation has been prohibited by the lawmaking power. . . The lawmaking power of this State has not yet seen — 594 — proper to declare the transportation of liquors by common carriers illegal; and inasmuch as rights are vested in liquors, just as they ■are in any other property, it is, in the absence of such a statute as we have indicated, the public duty of the carrier to receive and transport liquors.” Such being the public duty of the carrier, it can not lawfully decline to discharge it, by electing to obey’an invalid municipal ordinance, instead of the valid and peremptory law •of the State which imposes upon it such public duty. It can not •escape the force of the living law of the land by taking refuge be-iind a lifeless municipal ordinance. The court below did not err in granting the mandamus absolute, ¡and the judgment complained of is Affirmed. All the Justices concur.