Landham v. City of LaGrange

Hill, J. (After stating the foregoing facts.) The plaintiffs brought a petition against the City of LaGrange, to enjoin the collection of a certain license or business tax against peddlers, peddling on the streets of the City of LaGrange, from house to house, merchandise or articles of any description, for the year 1926, of $200 per annum. The petition alleges that the plaintiffs had paid the special tax of $50 under the general tax act passed at the extraordinary session of the General Assembly of 1923. The petition, which was sworn to, alleged that plaintiffs did make a house-to-house canvass in Troup County, taking orders for the sale of goods and making deliveries at the time of taking the orders, at which time partial payments for the goods thus delivered were paid, etc. Thus it will appear that plaintiffs were peddlers within the meaning of the ordinance passed by the City of La-Grange, imposing a tax of $200 on peddlers within the city. The ordinance is attacked on various grounds which are set out in the foregoing statement of facts; among others that it is excessive, unreasonable, discriminatory, and confiscatory, and therefore void. The case was submitted to the trial judge at the interlocutory hearing on the sworn petition for the plaintiffs, and affidavits introduced by the defendants from numerous residents of LaGrange, who testified that they were familiar with the kind of business in which the plaintiffs were engaged, and that from their knowledge of the business they should make a net profit from such business of from $2,500 to $4,000 a year. After hearing this evidence the trial judge refused to grant the injunction prayed for. The burden of proving an ordinance unreasonable is on the party attacking it. Ray v. Tallapoosa, 142 Ga. 799 (3), 800 (83 S. E. 938). We are of the opinion that the plaintiffs failed to carry the burden placed upon them by the rule laid down above. The petition, which was sworn to, alleged that, after deducting the expenses of doing business and the cost of the goods, Landham would have a profit of approximately $150 a year. Opposed to this is the testimony of the witnesses above referred to, who placed the profits of the plaintiffs in error at from $2,500 to $4,000 per year. So we can not say, under this evidence which the trial judge [574] had before him when he refused to grant the injunction, that the special tax was so excessive as to render the ordinance void for that reason. Nor can we say that it was discriminatory, because any merchant of LaGrange who might peddle from house to house within the city would be subject to the same special tax. No question is raised in the record that the City of LaGrange has no right to classify businesses for the purpose of imposing- a license tax as between persons of the same class. The plaintiffs predicate their attack on the ordinance in question on the ruling in the case of Huguley-McCulloh Auto Co. v. LaGrange, 159 Ga. 352 (125 S. E. 799), where this court held: “A municipal ordinance of the City of LaGrange, imposing upon itinerant automobile dealers having no place of business in that city paying open door license, and at which stock subject to taxation is carried, an occupation tax in the sum of $200, is void, because, under the facts of this case, it imposes an unreasonable, excessive, and prohibitive tax.” The facts in the Huguley case were different from the facts in the present case. There the uncontradicted evidence was that the approximate profits did not exceed $500 after payment of all expenses and losses. So we reach the conclusion, under the facts of this case, that the trial judge did not err in refusing the temporary injunction. Judgment affirmed. All the Justices concur, except Bussell, O. J., and Eim.es, J., who dissent.