In Great Atlantic Pacific Tea Co. v. Columbus, 189 Ga. 458 (6 S.E.2d 320), and again in City of Albany v. Lippitt, 191 Ga. 756 (13 S.E.2d 807), we undertook to put at rest all uncertainty as to the circumstances under which equity would enjoin a criminal prosecution. It was there pointed out that an exception to the general rule is when injury to property is threatened, and when this is true, injunction will lie notwithstanding the fact that in the process a criminal prosecution is enjoined.Summary of this case from Moultrie Milk Shed Inc. v. City of Cairo
NOVEMBER 16, 1939. REHEARING DENIED DECEMBER 15, 1939.
Petition for injunction. Before Judge McLaughlin. Muscogee superior court. July 25, 1939.
Feldman Kittelle, Foley Chappell, Albert W. Stubbs Jr., Hirsch Smith, Caruthers Ewing, and MacDougald, Troutman Arkwright, for plaintiff.
William de L. Worsley, J. Robert Elliott, W. K. Miller, W. D. Lanier, W. T. Gary and Roy V. Harris, for defendants.
1. Equity will enjoin a criminal prosecution that illegally threatens irreparable injury or destruction of property, where the plaintiff has no adequate remedy at law. In such a case the injunction issues, not to prevent the criminal prosecution, but to prevent unlawful injury to property.
2. A municipal ordinance is reviewable by the courts as to its reasonableness, and if found to be unreasonable it will be held void. The ordinance here involved was adopted as a revenue measure under charter authority to tax. It places upon each of the individual grocery stores of plaintiff an occupation tax from four to one hundred and twenty times the amount imposed upon individual independent grocery stores in the city. The evidence shows conclusively that the ordinance is confiscatory and unreasonably oppressive; and therefore it is unreasonable and void. No ruling is made on the constitutional questions presented, or as to the authority of a municipality to take into consideration territory outside of its jurisdiction, upon which to base a classification for taxation.
No. 13055. NOVEMBER 16, 1939. REHEARING DENIED DECEMBER 15, 1939.
On December 12, 1938, the city commission of the City of Columbus adopted a general tax ordinance for 1939, the caption of which is as follows: "An ordinance providing for the levy, assessment, and collection of taxes for the City of Columbus, Georgia, for the year 1939, as provided under the charter of said city and under the amendment incorporated in section three of the act of the General Assembly of Georgia, approved August 5, 1921, and amendments thereunder; providing penalties for violations of the provisions of said ordinance; and for other purposes." The ordinance levied a tax on all species of property, a street tax, and a "special or license tax" on all types of business conducted in the City of Columbus. The portion of the ordinance applicable to groceries classified retail groceries under two heads, — first, small dealers, ranging from $10 with one employee to $300 with ten employees or over; and the other class was chain grocery stores, as follows: not over six employees, $100; over six and not over ten employees, $200; over ten employees, $300. Section 15 of the ordinance provides that it shall be subject to amendment or repeal, in whole or in part, at any time, and that no such amendment shall be construed to deny the right of the commission to assess and collect any of the taxes prescribed; that for the purpose of amendment each tax under each classification in the list of special license taxes shall be considered separate; and that the payment of special license taxes under the ordinance shall not prohibit the levy by the city of additional special license taxes upon the same business.
On January 20, 1939, the city commission adopted an amendment to the tax ordinance, which recited, "that because of the advantage accruing from the operation of multiple stores wherever situated, and because of the basic difference inherent in such character of operations and business, there is hereby levied for the year 1939 on the business of operating and maintaining, as part of a group or chain, any store that is stationary, in the City of Columbus, Georgia, where goods, wares, merchandise, or commodities of every description whatsoever are sold or offered for sale at retail, an occupational tax or license tax as hereinafter stated." The ordinance declared that such tax should be payable on March 1, 1939, and that it should be in addition to all State taxes or licenses and all other specific business and occupation taxes, whether paid or not. The tax imposed by the ordinance was graduated as follows: (1) chains having not more than ten stores, $50; (2) more than ten and not more than forty stores, $100; (3) more than forty and not more than eighty stores, $250; (4) more than eighty and not more than 125 stores, $500; (5) more than 125 and not more than 200, $750; (6) more than 200 and not more than 400, $1,000; (7) more than 400 stores, $1,200. The schedule provided that the tax therein stipulated was levied upon each store operated in the City of Columbus, belonging to a group or chain, whether or not all the stores of such chain operated in the city. It was provided that such tax should be paid to the treasurer of the city, and would be delinquent after April 1, 1939; and that when payment was made a license certificate showing such payment should be obtained and displayed in the place of business. It was declared if any person or firm whose duty it was to obtain such license should, after the license tax became delinquent, transact or offer to transact in the city the business of operating a chain store without having first obtained the license therein provided, the offender should, upon conviction, be punished by a fine of not exceeding $250, or by imprisonment not exceeding sixty days, either or both in the discretion of the city recorder. In addition, it was provided that the clerk of the city, upon any such tax becoming delinquent, should issue an execution for the amount thereof, in substantially the same form, bearing the same rate of interest and providing for the same costs, as in the case of executions for ad valorem taxes due to said city; and that such executions should constitute a lien as other executions, and be enforced by levy and sale as provided by the charter of the city and the laws of the State in regard to ad valorem taxes. Section 36 was as follows: "The provisions of this ordinance shall not apply to persons, firms, corporations, or associations of persons selling or distributing only from: (a) Depots, warehouses, or platforms where ice is manufactured, stored, or sold. (b) Depots or dairies where only milk or butter, cheese, ice cream, or other dairy products are sold. (c) Any place of business where the principal business conducted is that of selling, storing, or distributing petroleum products. (d) A store or stores selling or distributing any commodity under a public-utility franchise from the State of Georgia or any municipality or other political subdivision thereof and selling only such goods, wares and merchandise as may be used with the commodity distributed under such franchise."
The Great Atlantic and Pacific Tea Company filed suit in the superior court against the city, the recorder, the marshal, and the chief of police of the city, alleging that the plaintiff was engaged in the business of selling at retail groceries, food stuffs, and miscellaneous related articles in the City of Columbus; that such business was legitimate and useful; that plaintiff operates five such retail stores in the City of Columbus; that it has paid all taxes required by the city, except the tax levied by the amendment of the general tax ordinance adopted January 30, 1939; that it has paid the annual occupation tax for each of its five stores levied by the general tax ordinance of the city for the year 1939, adopted December 12, 1938. The original ordinance and the amendment were attached to and made a part of the petition. It was alleged that the additional tax ordinance or amendment, by the provision that stores operated in a chain of more than 400 stores shall pay an additional license or occupation tax of $1,200 for each store operated in the city, requires the plaintiff, which operates stores throughout the United States and elsewhere, numbering more than 400, to pay $1,200 additional business tax upon each of its five stores operated in Columbus, aggregating an additional occupation tax of $6,000. The petition attacked the validity of the ordinance upon eight grounds, in substance as follows: (1) The separate classification of chain stores is unreasonable, arbitrary, and discriminatory, and denies to petitioner the equal protection of the laws. Const., art. 1, sec. 1, par. 2 (Code, § 2-102). (2) The subclassifications of chain stores, based on the number of units, are unreasonable and arbitrary, and deny to plaintiff the equal protection of the laws. (3) The ordinance violates the uniformity of taxation requirements of the State constitution, art. 7, sec. 2, par. 1 (Code, § 2-5001). (4) The exemption of certain types of chain stores is unreasonable and arbitrary, and denies to the plaintiff the equal protection of the law, and violates the uniformity of taxation provision of the State constitution. (5) Having already levied and collected for 1939 a license tax on chain grocery stores, the attempt by the city to levy the additional tax on the business of operating a store as a part of a chain constitutes a tax upon the mere incident of the business of operating chain grocery stores, for which the plaintiff has already paid a business tax. (6) The ordinance levying the additional tax is unreasonable, and therefore void. (7) The city is without authority to levy a prohibitory tax upon a lawful business which has been licensed by the State. (8) The ordinance arbitrarily places one group of competitors at a disadvantage with respect to another, for the benefit of the latter, and without regard to the interest of the public, and is in restraint of trade and unconstitutional. For the reasons stated, the plaintiff has refused to pay the tax on its five stores in Columbus, and because of its failure the city, acting through its police department, on April 3, 1939, caused the arrest of John O. Windham, the manager of plaintiff's business in Columbus, on a charge of doing business without paying the tax, which charge is now pending in the recorder's court of the city; that the city through its clerk is threatening to prefer other charges against Windham for separate transactions in the conduct of the plaintiff's business so long as the tax remains unpaid; that the city through its clerk is threatening to bring similar prosecutions against each of the five managers of plaintiff's five stores in Columbus and against all the clerks and other employees in said stores, unless the tax is paid; that such prosecutions will completely paralyze plaintiff's operations, and will quickly bring about a destruction of plaintiff's business; and that plaintiff has no adequate remedy at law, and will suffer irreparable damages unless equity restrains such acts and threats of the defendants.
The City of Columbus filed answer admitting the material allegations of the petition, except the allegations attacking the validity of the tax ordinance, which are denied. On interlocutory hearing the parties offered evidence on the issue of whether or not there are inherent advantages in chain-store operations increasing as the units in the chain are increased. Evidence which was not denied showed the volume of business and the gross and net profits realized for the years 1937 and 1938 from the operation of the plaintiff's five stores in Columbus, and the effect thereon of the occupation tax of $1,200, complained of in the suit, which was as follows:
Store Gross Profit Percent Net Profit Percent No. 1937 1938 1937 1938 1937 1938 1937 1938
1 $ 8,790 $10,863 13.6 11 $ 664 $ 870 Def. Def.
2 8,830 8,475 13.5 14.2 1,251 909 95.9 Def.
3 10,158 11,068 11.8 10.9 1,564 2,002 76.7 59.9
4 20,442 17,192 5.9 7 2,961 791 40.5 Def.
5 Not open 47,320 .... 2.5 .... 10,232 .... 3.9
It was undisputed that the plaintiff's operating policies were efficient, economical, and without loss or waste. The plaintiff had complied with the State law by paying $200 to the State for each of its five stores, and had received from the State a license authorizing the operation of each of said stores for the calendar year 1939. On January 30, 1939, the plaintiff paid to the City of Columbus the business-license tax required of it by the city ordinance for the year 1939, adopted December 12, 1938. A number of dealers in farm products testified that the plaintiff's stores furnished a desirable market for farm products. Other witnesses testified that the plaintiff's prices to the consumer were beneficial to labor and industry, and had the effect of reducing the cost of living. There was evidence showing the operation of all chain stores in the City of Columbus, and the effect on such operation of the tax complained of.
The defendant introduced a number of independent merchants who gave testimony as to the general advantages inherent in chain store operation, and showing that in 1923 there were 360 retail grocery stores in Columbus, and in 1937 this number had decreased to 292, while the population of the city had increased approximately 33-1/3 per cent. during the same period; that the number of chain stores during this period had increased from 13 to 32, while the number of wholesale grocery establishments had decreased from eighteen to eight; that the average number of persons employed by the independent grocery stores is four, by the wholesale grocery stores fifteen, and by the chain grocery stores five; and that as a result of the influx of the chain-store organizations there are in the City of Columbus approximately 200 unoccupied store buildings. The plaintiff showed that it operates more than fifteen thousand stores throughout the United States, but that it is cut up into six divisions, each of which has its directors and operates individually, with the exception of policy-making supervision by the head office in New York; that these divisions are further cut up into approximately 45 warehouse districts, each warehouse district making all purchases for the stores in that district, because to purchase on a national scale would be highly inefficient, unwieldy and entirely impractical; that each warehouse buyer has full authority to determine what commodities shall be purchased and the amount to be purchased at any given time; that under the provisions of the Robinson-Patman act of 1936 large buyers are prevented from securing unwarranted advantages in prices over small buyers, that act permitting the seller to reduce the price to the buyer only in the exact amount which the seller saves in the cost of selling in large quantities; and that a purchasing unit of 205 stores, which is the number of stores of plaintiff in the warehouse district embracing Columbus, has no advantage in buying over a unit of fifty stores, and little, if any, over a unit of ten stores. The principal item of cost in which there may be a saving is transportation, and the maximum saving in this respect is through purchasing in carload lots. The undisputed evidence showed that the allegations of the petition with respect to prosecutions and threatened prosecutions of plaintiff's employees by the city and its damaging effect on plaintiff's business were true.
The judge denied an injunction, and the plaintiff excepted.
1. While the allegations of the petition that the prosecutions and threatened prosecutions of the plaintiff's employees would injure its business were admitted, the defendant denied that such injury would cause irreparable damage, and denied the right of the plaintiff to refuse to pay the tax complained of. Equity will not enjoin a criminal prosecution solely to prevent such a prosecution, but it will in any proper case, by injunction or otherwise, prevent injury or destruction of property. Carey v. Atlanta, 143 Ga. 192 (2) ( 84 S.E. 456, L.R.A. 1915D, 684, Ann. Cas. 1916E, 1151); Baldwin v. Atlanta, 147 Ga. 28 ( 92 S.E. 630); Wofford Oil Co. v. Boston, 170 Ga. 624 ( 154 S.E. 145); Walker v. Carrollton, 187 Ga. 237 ( 200 S.E. 268). The writer dissented from the judgment in the Walker case, on the sole ground that it was his opinion that the allegations of the petition showed that an injunction was sought to prevent a criminal prosecution only, and not to protect the property of petitioner; and had he thought that the allegations made a case of threatened injury to property, as the majority ruled, he would not have dissented. In the present case there was no conflict in the evidence, which showed that it was the intention of the defendant to arrest and prosecute each employee of plaintiff unless the tax involved was paid, and that to do so would seriously injure the business and property of plaintiff. It should be noted that the present suit is not an effort on the part of the plaintiff to protect itself by injunction against criminal prosecution. Instead, the injunction is sought to protect the plaintiff's property and business against serious injury that would result from the threatened prosecution of all of its employees. It is manifest that if these employees are arrested repeatedly and continuously under criminal process, as shown in the present case, the plaintiff's stores will be unable to operate; and thus a serious injury to plaintiff's property will result. The plaintiff could not require the employees to resist such prosecutions on the grounds alleged, and executions may never issue and be levied for the tax, thus rendering the plaintiff without a remedy. Therefore, if the ordinance under which the prosecutions are to be made is void, equity should intervene by injunction and protect the business and property of the plaintiff against the injuries resulting from such illegal prosecution.
2. The attacks upon the ordinance may be grouped in two general classes, to wit: (1) that the ordinance is unreasonable; and (2) that the ordinance is unconstitutional. Since it is the established rule of this court never to decide constitutional questions if the decision of the case presented can be made upon other grounds ( Carter v. Dominey, 157 Ga. 167, 121 S.E. 236; Mystyle Hosiery Shops v. Harrison, 171 Ga. 430 (3), 155 S.E. 765; Georgia Power Co. v. Decatur, 173 Ga. 219, 159 S.E. 863), we must first consider that phase of the case here presented resting upon alleged unreasonableness of the ordinance involved; and if upon this consideration the ordinance is found to be void, no ruling will be made upon the constitutional questions presented by the record. Legislative powers conferred by charter provisions upon a municipality are not to be measured by the more extensive powers of the State legislature. Mayor c. of Savannah v. Cooper, 131 Ga. 670 ( 63 S.E. 138). One requirement of all municipal ordinances is that they must be reasonable, and the courts must declare void an ordinance found unreasonable. Atlantic Postal Telegraph-Cable Co. v. Savannah, 133 Ga. 66 ( 65 S.E. 184); Mayor c. of Shellman v. Saxon, 134 Ga. 29, 32 ( 67 S.E. 438, 27 L.R.A. (N.S.) 452); City of Acworth v. Western Atlantic R. Co., 159 Ga. 610 (2) ( 126 S.E. 454); Richardson v. Coker, 188 Ga. 170 ( 3 S.E.2d 636). In Metropolitan Street R. Co. v. Johnson, 90 Ga. 500 (7) ( 16 S.E. 49), it was declared that "The reasonableness or unreasonableness of a city ordinance regulating the speed of a train upon a street is a question of law for the court to decide, and not for the jury, unless it depends in the opinion of the court on the existence of particular facts which are disputed." In Mayor c. of Savannah v. Cooper, supra, the City of Savannah had adopted an ordinance levying a tax of $100 for the year 1908 upon all agents and representatives of packing-house goods and products having a place of business or stock of merchandise in the city and selling therefrom to customers in Savannah, with an additional tax of $400 for those selling fresh meat. An agent of Armour Packing Company, against whom the city levied a tax of $500 under the provisions of the ordinance and whose annual salary was $1,800, attacked the validity of the ordinance on the grounds that it was excessive, prohibitory, and unreasonable, and that the State had licensed the company's business and had given him the right to act as agent. This court declared: "Municipal ordinances must be reasonable. The limitations of the power of a city council in this regard are not to be measured by the more extensive powers of the State legislature. A city tax on an occupation must be reasonable with reference to such vocation. This does not mean that it must be adjusted to the amount of business of each individual, or limited exclusively by the receipts of some particular individual; but, considering that business within the municipality as a whole, the tax must be reasonable and not arbitrarily discriminatory." The opinion quotes extensively from the trial judge's opinion holding the ordinance void for unreasonableness, in which reference is made to various portions of the tax ordinance involved, showing the amount of occupation tax levied thereby and showing them to be many times smaller than the tax imposed upon the agent involved in that case. This court affirmed the judgment of the trial court, and cited Morton v. Macon, 111 Ga. 162 ( 36 S.E. 627, 50 L.R.A. 485), in which case was involved a tax ordinance of the City of Macon imposing a business tax of $500 upon money lenders lending money on household and kitchen furniture and wearing apparel. The ordinance provided that the tax should be paid by January 15, 1900, or within fifteen days from commencing business, and declared that all persons failing to comply with this provision should be deemed guilty of doing business without a license and subject to a prescribed penalty. Morton was convicted of doing business in violation of the ordinance. At the trial it was shown that the tax was in effect prohibitory, and that Morton exacted from his customers exorbitant and usurious rates of interest. The case was decided upon the question whether the municipal authorities had power to impose such a tax. This court said: "There is a very wide difference between a power to license an occupation with a view to regulation and a power to tax it for the sole purpose of raising revenue. `A power to license, when specifically given in the charter of a city, is . . a police power. The exaction of license fees for revenue purposes is the exercise of the power of taxation.' North Hudson County R. Co. v. Hoboken, 41 N. J. Law, 71. . . The question before us is, therefore, resolved into simply this: Does a power given by law to a municipal corporation to tax a useful and legitimate business include the right of imposing upon it a tax so high as to render it impossible to pay the same and carry on the business profitably? As the purpose of such taxation is to raise money for the support of the municipal government, and as the power of taxing is given exclusively for the accomplishment of this needful purpose, ordinances adopted in pursuance of this power must tend to effectuate, and not to defeat, the end in view. . . In City of Lyons v. Cooper, 39 Kan. 324 ( 18 P. 296), it was expressly ruled that, under legislative authority to levy and collect `just and reasonable' license taxes from persons pursuing designated occupations, `an ordinance of such city purporting upon its face to be enacted for the levying and collecting of a license tax, but which is a clear and palpable attempt to destroy and forbid a legitimate, necessary, and commendable business, is void and can not be enforced.' The tax then under review was held to have been laid, `not for revenue, but for destruction,' and therefore wholly unauthorized." The purpose of the ordinance here involved, as clearly disclosed by its caption, was to raise revenue for the support of the city government, and it was in no wise intended as an exercise of the regulatory powers conferred by the charter of the City of Columbus. It is therefore subject to the law applicable to the charter authority of the city to levy taxes for the sole purpose of raising revenue. This record does not present a case where the city has attempted under its police power to regulate the business affected by the tax ordinance. The city commission expressly confined the ordinance to the taxing authority conferred by the charter, and no hint or pretense of regulation for economic or other reasons under the police power of the city is made. While the city produced evidence which tended to show that the increase of chain stores in Columbus had had the effect of driving a much larger number of independent stores out of business, yet such evidence could not possibly illustrate any issue which the court is called upon to decide in the present case. Even if it could be material in sustaining an ordinance adopted for regulatory purposes in the exercise of the police power conferred by charter, it fails to illuminate the controlling issue presented in this case, which is whether or not the tax levied is unreasonable. In Jones v. Stewart, 117 Ga. 977, 980 ( 44 S.E. 879), it was stated: "The naked power to tax conferred upon a municipality does not comprehend authority to regulate or to tax unto death." In Miller v. Shropshire, 124 Ga. 829, 832 ( 53 S.E. 335, 4 Ann. Cas. 574), it was said: "Taxes can not, of course, be raised by imposing upon the taxpayer a burden which he is unable to carry." But the City of Columbus contends that the reasonableness of a municipal tax can not be determined by the amount of the gross business or net profits realized. It is contended that the failure to make a profit might be due to bad location, poor management, or to an excessive number of units as applied to chain stores; and that the ordinance is presumed to be reasonable and valid, and the burden is on the plaintiff to prove its unreasonableness and invalidity, which is not done by merely showing that the amount of business and profits realized does not justify the amount of tax imposed. In support of this contention the following cases are cited: Atlantic Postal Telegraph-Cable Co. v. Savannah, 136 Ga. 657 ( 71 S.E. 1115); Brannan v. Harrison, 172 Ga. 669 ( 158 S.E. 319); Steuer v. Atlanta, 176 Ga. 433 ( 168 S.E. 7); National Linen Service Corporation v. Albany, 177 Ga. 81 ( 169 S.E. 894); Central Telephone Co. v. Nashville, 179 Ga. 230 ( 175 S.E. 539); National Linen Service Corporation v. Gainesville, 181 Ga. 397 ( 182 S.E. 610); National Linen Service Corporation v. Milledgeville, 51 Ga. App. 167 ( 179 S.E. 837). It is further contended by counsel for the city that the ordinance involved levies a tax upon the privilege of chain store operation, and that by virtue of this fact the plaintiff's stores must be considered as a group, and not singly, in determining the reasonableness of the ordinance. The language of the ordinance itself refutes this argument by expressly levying a tax upon each of the individual stores. The ordinance states, as a reason, that the tax is levied "because of the advantage accruing from the operation of multiple stores wherever situated, and because of the basic difference inherent in such character of operations and business." The levy itself, however, is made in the following language: "There is hereby levied for the year 1939 on the business of operating and maintaining, as part of a group or chain, any store . . an occupational tax or license tax as hereinafter stated." (Italics ours.) Then follow the classifications and amounts of such tax on each store in each classification. It is seen that the ordinance clearly and expressly singles out each individual unit or store and lays the tax upon it. Then, too, it should be borne in mind that the business here sought to be taxed is a legitimate and useful business which has been licensed by the State. The State has exacted of the plaintiff $200 for the privilege of operating each of its stores in the City of Columbus for the year 1939. The plaintiff has paid this amount, and has received from the State a license to operate each of its stores for that year. In view of the fact that the tax is placed on the individual chain stores, all of which have been individually licensed by the State, there is no basis for the contention that the stores of the plaintiff should be considered as a group, and not individually. In this case each store is entitled to the same consideration that would be accorded to a member of any class of subjects that might be taxed, and the validity of the ordinance must be determined by a consideration of its effect on the individual stores embraced in the class which it taxes. We do not mean to imply, however, that the receipts and profits of the store, standing alone, although the tax completely consumes such profits, will suffice to show that the tax is unreasonable and void. But proof that the tax consumes the entire profit of the stores, coupled with evidence of the prevailing conditions in the city as a whole, showing that these profits are equal to the average in similar businesses, will demand a finding that the ordinance is unreasonable. The uncontradicted evidence shows that the tax of $1,200 upon each of the plaintiff's five stores in the City of Columbus exceeds the entire net profits of three of the stores for the year 1938. It amounts to 59.9 per cent. of the net profits of another store, and 3.9 per cent. of the net profits of the fifth store, which was operated for only four months during the same period. This evidence clearly shows the destructive effect of the tax as applied to three of plaintiff's stores; and while leaving some of the net profits of the fourth store, it too will be unreasonably burdened by the enforcement of this ordinance. For the purpose of showing the effect of this ordinance upon the class taxed thereby, the plaintiff introduced evidence showing the operations of the principal chain stores in the City of Columbus for the years 1937 and 1938. The disastrous effect of the tax upon all of these stores is vividly disclosed by the fact that the tax exceeds the entire net profits for the year 1938 of 27 of the 39 chain stores operated in the City of Columbus. Thus more than two thirds of the stores to which the tax applies will be compelled by the enforcement of this ordinance, not only to surrender to the city all of the net profits realized from their operation, but to go further and encroach upon the capital investment to pay the part of the tax in excess of the profits from the business. Such a process, if continued, would ultimately consume the entire business. While this evidence shows that almost a third of the total stores affected by the ordinance had net profits for 1938 in excess of the tax levied, this does not show that the tax is reasonable in amount. We do not understand the law to mean that if a small minority of a class is able to pay a tax, this fact renders the same reasonable and valid, although a large majority is unable to pay the same. Nor do we think that the fact that a small minority is unable to pay a tax will render it unreasonable and void. Fairness and common sense, upon which the law stands, require that the validity of such a tax be determined by its general effect upon the class as a whole. This case demonstrates the disastrous effect of any other rule. In 1938 the plaintiff opened a "super-market" in the City of Columbus. Based on the amount of business which it did in 1938, it is estimated that this store's sales in 1939 will amount to a million dollars. Its sales and net profits will be approximately fifteen times as much as those of any other store of the plaintiff or any other chain grocery store in the City of Columbus. Clearly such a store is not representative of the class taxed by this ordinance, and certainly the effect of the tax upon this one store is no guide in determining the reasonableness of the tax upon the entire class. The decision in Steuer v. Atlanta, supra, does not state a different rule. In the opinion in that case it was said: "The trial judge could have inferred that the plaintiff had too greatly multiplied the number of units and had located some of them in places where the business could not be well supported." The evidence in this case is not susceptible of such a construction. It appears that it is the policy of the plaintiff and other chain-store organizations to place each store upon its own bottom, and to operate only those which are able to show a reasonable profit. It also appears that there is no great variance in the gross sales or net profits of 26 of the 27 chain grocery stores in Columbus, the one exception being the "super-market" above referred to; and yet the tax complained of is equal to 40 per cent. of the net profit of the most profitable of these 26 chain stores. In view of these facts it can not be said that the judge was authorized to find that the units of chain stores in the City of Columbus had been too greatly multiplied, or that they had been located in places where they could not be well supported, and that for these reasons they were unable to bear a tax which was equitably adjusted to the economic and other conditions applicable to such businesses within the city as a whole. The evidence in this case leaves no ground for reasonable doubt that the general effect of the tax on the chain stores in the City of Columbus, constituting the entire class upon which the tax is levied, is unreasonably oppressive, and that the ordinance is unreasonable and void. Compare Southern Express Co. v. Ty Ty, 141 Ga. 421 ( 81 S.E. 114); City of Waycross v. Georgia Investment Co., 146 Ga. 2 ( 90 S.E. 281); Western Union Telegraph Co. v. Fitzgerald, 149 Ga. 330 ( 100 S.E. 104).
Further evidence of the unreasonableness of the amount of the tax imposed by this ordinance is disclosed by the record. Before the enactment of this ordinance the city had levied a tax of approximately $200 upon each of plaintiff's stores. Therefore, if the present ordinance is allowed to stand, each of the stores of plaintiff will be required to pay city license taxes of $1,400 in addition to the State tax of $200. The plaintiff put in evidence the city tax ordinance for 1939, showing the amount of business tax levied by the city for that year upon all types of business conducted in Columbus. This evidence was admissible on the issue of reasonableness of the tax sought to be imposed upon plaintiff. Mayor c. of Savannah v. Cooper, supra. It shows that a business tax of $1,000 upon an electric light or power company is the highest business tax imposed upon any business, except units of chain stores. It also shows that individual grocery stores are required to pay a total business tax, graduated on the number of employees, as follows: one employee, $10; two employees, $25; over two and not over four employee, $75; over four and not over six, $100; over six and not over eight, $150; over eight and not over ten, $200; over ten, $300; combined wholesale and retail hardware stores, $250; retail hardware stores, $100; wholesale grocery stores with sales of more than one million dollars, $400; cotton mills with over 25,000 spindles, $500. Thus the ordinance shows that in the judgment of the city commission grocery stores which are similar to plaintiff's business should not be required to pay a business tax of more than $300; and that no other business, including wholesale and retail hardware, wholesale grocery, cotton mills and power companies, should be required to pay an occupation tax as large as is imposed upon the plaintiff by the ordinance. This comparison illustrates the exorbitance and unreasonableness of the tax complained of. Our conclusion is that the plaintiff, by proof of the amount of business done by all of its stores during the years 1937 and 1938, as well as the evidence showing the business done by other grocery stores in the City of Columbus, has abundantly met the requirement of law that it carry the burden of proving the prevailing business conditions in the city and of proving the ordinance to be unreasonable. This court must therefore declare the ordinance to be unreasonable and void.
Having held that the ordinance is void for the above reasons, no ruling will be made upon the constitutional questions presented; nor is any ruling made as to the authority of the city to take into consideration territory outside its jurisdiction upon which to base a classification for taxation. City of Douglas v. South Georgia Grocery Co., 180 Ga. 519 (3- b) (179 S.E. 768, 99 A.L.R. 700). There being no issue on the controlling facts, the evidence demanded the grant of an injunction.
Judgment reversed. All the Justices concur.