Latham v. Stewart

Atkinson, J. The judge was authorized to find that the plaintiff, without a license so to do, in the county of Fulton, engaged in peddling chickens, eggs, and butter; and 'the only question is whether the peddling of such commodities renders the petitioner subject to the tax provided for in part 1, title 2, sec. 2, par. 27, of the general tax act of 1909, as now embodied in the Civil Code, § 946. After providing for a number of specific and occupation taxes, the act imposed such a tax of fifty dollars, in each county where the business was conducted, “Upon every peddler and traveling vendor of any patent or proprietary medicines, or remedies, or appliances of any kind, or of special nostrums, or jewelry, or stationery, or drugs, or soap, or of any other kind of merchandise or [189] commodity whatsoever (whether herein enumerated or not), peddling or selling any such goods, wares, medicines, nostrums, remedies, appliances, jewelry, stationery, soap, drugs, or other merchandise.” If the peddling of chickens, eggs, and butter is compre-, hended by this section of the act, the plaintiff was subject to the tax, and the ruling of the court was proper; but if not so comprehended, the plaintiff would not be subject to the special tax, and the judgment of the court would be erroneous. It will be observed, that the tax is upon dealers “of any patent or proprietary medicines, or remedies, or appliances of any kind, or of special nostrums, or jewelry, or stationery, or drugs, or soap, or of any other kind of merchandise or commodity whatsoever (whether herein enumerated or not).” Chickens, eggs, and butter clearly would not be included under any of the things specially mentioned; and the question is whether they are comprehended by the words “or of any other kind of merchandise or commodity whatsoever.” These are general words, which are preceded by words specially designating particular classes of merchandise or commodities. Under the rule of ejusdem generis, the general words ordinarily should be construed as referring to merchandise or commodities of the same kind as those specially named. Grier v. State, 103 Ga. 428 (30 S. E. 255). Those which were specially named are of a different nature altogether from articles of food, in which class chickens, eggs, and butter would fall. It was evidently the legislative intent that the general words should apply only to merchandise or commodities which were of the same nature as those before specially named. The effect of so restricting the general words would be to leave the legislature free to tax the peddling of other merchandise or commodities of a different nature, at a higher or lower amount, or not at all, accordingly as the nature of the commodity might in the legislative mind deserve to be treated. Sec. 2, par. 28 of the act is indicative of such intent; for there a higher business tax of two hundred dollars was imposed on peddlers and traveling vendors of stoves, ranges, and clocks, all of which were commodities or proper subject-matter of merchandise, but different in nature from patent or proprietary medicines, etc., the things specially named. If this interpretation be given to paragraph 27, that part of the act will harmonize with par. 28; but if it should not be given, and the general words should be held to include all merchandise or co:: - [190] modifies of whatever nature, these provisions will be in irreconcilable conflict; for both would tax the peddling of stoves, ranges, etc., but in different amounts. ■ Again, j>ar. 27 of the act (Civil Code, § 946), requires the payment of $50 in each county wherein a peddler may sell “any patent or proprietary . . appliances of any kind,” while under par. 28 (3) of the act (Civil Code, § 947), every peddler is required to pay $25 in every county in which he may sell “any other patented article” than those enumerated in that section. Now, unless the rule of ejusdem generis be applied in construing the two sections, at least in determining which amount, $50 or $25, shall be paid by a peddler for selling a patented article in a county, when such article is not one specifically named in either of these sections of the code, how can the conflict in the two sections be reconciled P And if the application of such rule must be made to reconcile the conflict as to some portions of the sections, it seems fair and just to apply the rule generally to the construction of both sections in their entirety. Moreover, if the general words in section 946 should be construed to extend to every class of merchandise or commodity of whatever nature, it would lead to absurd results. It could hardly be contended that a tax of $50 upon boys peddling newspapers on the streets was in the legislative mind; yet newspapers are commodities, and the peddling of them would be taxed under such a construction. Examples of this character could be multiplied. Further, if the general words are to be so construed, the particular words which precede them would have been entirely useless, and no reason appears why the legislature should idly have employed them. The legislature might have taxed the peddling of articles of food had it been thought proper to do so-; but there was no mention of them, or anything in the nature thereof, anywhere in the act. It seems evident that the peddling of them was not intended to be taxed. In view of this construction of the act, it was erroneous to refuse to enjoin the collection of the tax. Judgment reversed. All the Justices concur, except Lumpkin and Hill, JJ., dissenting.