Town of Arlington v. Central of Georgia Railway Co.

Cobb; P. J. (After stating the facts.) 1. In the case of City Council of Augusta v. Central Railroad, 78 Ga. 119, it was held that a municipal corporation of this State had no power to levy an occupation tax upon what is known as a commercial railroad! company, as distinguished from a street-railroad company. In that case the city authorities of Augusta had embraced in their ordinance levying specific taxes the following item: “On all railroads, $500.” Mr. Justice Blandford says: “The ordinance of the city, taxing railroads, is not a tax on bush ness occupations. A railroad itself does not carry on any business occupation; it is merely property; it is not a person or an individual, so as to be -an inhabitant or resident of the' city of Augusta. If a railroad company, which is a corporation, should carry on a business in the city of Augusta, such as warehouseman, broker, drayage or commission business, etc., it would be liable to be taxed as any other person carrjdng on a like business. But if the railroad company merely does such business as they are-authorized to do under their charter as carriers of freight and passengers, then there is no authority in the -city of Augusta to levy, a specific tax against them for such business or occupation; but the right to tax such corporations is reserved to the State by the act of the legislature of 1874, page 103. This act provides that a return shall be made by the presidents of all railroad companies in this State to the comptroller-general, and that the property be taxed as the property of other people of this State. There is no authority vested in any city in this State to levy and collect such tax, except there be property in such city owned by a railroad company disconnected with the operation of such road.” This ruling has never been followed, and the case has never been referred torn specific terms of approval. In Atlanta National Asso. v. Stewart, 109 Ga. 94, the ease is referred to simply to show that no-constitutional question was involved therein, and that the decision was merely the construction of a statute. In Staten v. S., F. & W. Ry. Co., 111 Ga. 803, it is cited with other cases simply to show that prior to the act of October 16, 1889, providing a “system for the taxation of railroad property by counties,” there was no machinery provided by the General Assembly for the assessment and collection of county taxes on railroad property. In Savannah, Thunderbolt & Isle of Hope Railway v. Savannah, 112 Ga. 164, [725] it is distinguished from the ease then in hand, which dealt with, the levying of an .occupation tax upon street-railway companies located wholly within the city, and the ruling is neither approved nor disapproved in terms. In Sou. Exp. Co. v. Rose Co., 124 Ga. 595, the writer expressed his dissatisfaction with the ruling, in the following language: “I do not think that this decision is sound, but of course it must be respected as the law until it is overruled. I see no reason why a municipal corporation, under a general power to levy occupation taxes, can not levy an occupation tax upon commercial railroad companies engaged in the business of common carriers in the city, just as they levy an occupation tax upon telegraph, telephone, and similar companies.” But the decision has never been ovérruled, and there is no request for •a review in the case now before us, and therefore it must be treated as binding authority, until it is disapproved in the manner provided by the statute. It is absolutely controlling in the present case. It is immaterial what may be the language of the charter of the Town of Arlington in reference to its power to levy occupation taxes. It is impossible for a municipal charter to be broader in its terms in this respect than was that of the City of Augusta; still it was held, in the ease we are now following, that the statute which dealt with the subject of ad valorem tax on the property, of railroads prevented the provision of the charter in reference to occupation taxes from becoming operative. 2. Counsel for the plaintiff in error, as has been stated, did not ask leave to review the ease above referred to, but insists that the case now before us is within the exception referred to in the opinion of Mr. Justice Blandford, that is, that the railway company is carrying on a separate and distinct business as a warehouseman, and is liable, under the ordinance, for an occupation tax as upon that business. If the railroad company was engaged in the business of a warehouseman, separate and distinct from its business as a common carrier, the position might be well taken, but it appears distinctly from the record that the railroad company, so far as it discharges those duties and makes those demands which are incident to the business of a warehouseman, is simply doing this because it is a necessary incident to its business as a common carrier. It receives no goods or wares from people in Arlington or elsewhere merely for storage. When the shipment [726] has been completed and the consignee fails or refuses to call for 'and receive the goods within a reasonable time after they have reached their destination, it stores such goods in its freight-house, and charges for such storage in the amounts and in the manner which the railroad commission has provided may be done by common carriers of freight. It neither seeks nor desires to have goods for storage. When compelled, on- account of the conduct of the consignee, to store them, it exacts only the storage fees provided by that tribunal which regulates its business as a common carrier. If it can not be taxed as a common carrier, a mere incident to its business in such capacity can not be segregated from its business in its entirety and made subject to an occupation tax. See, in this connection, Hewin v. City of Atlanta, 121 Ga. 723. Judgment affirmed. All the Justices concur, except Fish, C. J., absent.