Gould & Company vs. The Mayor, etc., of Atlanta. race, it doubles the tax and turns loose execution. It then puts the defaulter in the dock as a criminal, and forces him to submit to be fined or imprisoned. It would be difficult, we think, to recognize this ordinance as a law for raising revenue, even if it pursued the statute on which it is founded; it seems to be designed rather as a measure of prohibition, and we think, in respect at least to the shortness of the time allowed for making returns and payment, it might well be pronounced unreasonable, and therefore void. 1. But the ordinance is singularly at variance with the grant of power contained in the charter. The power is, to tax itinerant traders generally. The ordinance is no attempt to exercise the power upon residents of the city, but upon non-residents only. Again, even non-residents are not taxed if they come in wagons. This is a discrimination founded on vehicles, or modes of conveyance. If T. Gould & Company had transported their merchandise in wagons and not in railroad cars, they would have been clear of this ordinance, but having come by railroad they are within its jaws. This discrimination alone would perhaps be sufficient to render the ordinance invalid. Its chief defect, however, considered with reference to the grant of power on which it rests, is that it spends its whole force on non-residents and spares residents entirely. Suppose a citizen peddles his wares through the city, is he not an itinerant trader? and if so, where is the authority in the charter for an ordinance taxing itinerant traders that leaves him untaxed as such? When power is given to municipal corporations to impose taxes, whatever else the grant may mean, it certainly means that the citizens are to be taxed. That is the plainest and most obvious construction in all cases. Other persons may be included, but citizens must be, unless expressly excepted. It is for them, and upon them chiefly, that local legislation is to act. Until there is an ordinance that binds the citizen, there can be none (other than a mere police regulation) that binds the stranger. When the stranger comes into the city he may be watched, but he cannot be taxed if citizens of his class are not taxed, unless there Gould & Company vs. The Mayor, etc., of Atlanta. is some special grant of authority enabling the municipality to tax him as a non-resident. As to his right to claim equality with citizens in whatever taxes are imposed: see 2 Dillon on Municipal Corporations, 631; 5 Caldwell, 554. The power to discriminate against him has been recognized by this court in one case involving slaves-a species of property peculiarly related to the police: 25 Georgia Reports, 610. 2. But were the ordinance operative alike upon resident and non-resident traders, would the tax it imposes be a lawful tax? The limit of taxation upon property is fixed by the charter at two per cent. By the constitution taxes upon property must be ad valorem and uniform upon all species of property taxed. Municipal taxes must conform to this rule: 49 Georgia Reports, 562. It follows that although the charter declares that the mayor and council shall have power to levy and collect from itinerant traders such tax as to them may seem proper, this provision of the charter must be construed either as no authority to tax the property of itinerant traders, or as authority to tax it at the discretion of the mayor and council, within the limits to which, by other provisions of the charter, they are confined in respect to property generally. If the power to tax itinerant traders is absolutely unlimited, then it does not relate to taxing their property at all, but to taxing them in some other way. The scheme of the charter is, evidently, to limit the taxation of property, and whatever does not come within the limit, either expressly or by implication, does not come within the scheme, and is therefore not to be understood as authority for taxing property. The maximum property tax allowed by the charter being two per cent., and the tax exacted of itinerant traders by the ordinance we are discussing being five per cent., the ordinance conflicts with the charter, if this five per cent. rate is a tax upon property. Is it such, is the question? It is laid upon the amount of sales, and is a fixed per centage on such amount. It is due and payable within one hour after a sale is made. It will accrue inevitably, though there be but a single transaction. Is it a tax on the contract in the nature of a stamp duty, with Gould & Company vs. The Mayor, etc., of Atlanta. no regard to the element of value, but with regard simply to the element of legal obligation? Surely not. It is not a tax on the act of transmitting title, or on the evidence of transmission. What is left, then, for the tax to reach? If only the thing sold and the price, each of these is property. If it is a tax on either it is a tax on property. Five dollars on each one hundred dollars of the amount of sales is the language of the ordinance. One dollar out of every twenty dollars of the price produced, the proceeds of sale. It is, perhaps, not mathematically certain on which the burden actually falls in a given transaction, the commodity or the price. If the price is proportionately reduced in consequence of the tax, the commodity bears the burden; and if not the price bears it. Probably, in many instances, it is shared between them, the reduction in price being less than the full amount of the tax. The theory that this is a tax on property is not unsupported by some authority. This court has determined a kindred question in the case of Pearce, Wheless & Company vs. The City of Augusta, 37 Georgia Reports, 597, which was a tax on the gross sales of cotton; on the gross amount of all sales of goods, wares, merchandise and produce, (except cotton;) on the gross receipts for storage, and on every $100 00 of commissions received by commission merchants and cotton factors. The tax, it will be perceived, was expressed in the ordinance to be on sales, on the gross amount of sales and of receipts, and on every $100 00 of commissions. The tax was pronounced by this court, it would seem, to be a tax upon property, and was upheld, apparently, as such. If any part of that judgment should be thought to be in conflict with Hartridge vs. The City of Savannah, 8 Georgia Reports, 23, it should be remembered that in the time intervening between the two decisions the tax laws of the state had been expanded so as to grasp nearly all values and subject them to taxation. The transition from the old system of taxing land by the acre, and other property specifically, or by the piece, to the ad valorem system, had become complete. There may or may not be other ways of reconciling the two cases; or, perchance, Gould & Company vs. The Mayor, etc., of Atlanta. they may be, at bottom, irreconcilable. Things sold and money or credits received therefor are alike property; and a tax on what passes from the seller, or on what passes to him from the buyer, looks very like a tax upon property: 14 Georgia Reports, 438; 41 Ibid., 21; 12 Wall, 418; 8 Ibid., 123, 148. There is, however, a line of decisions which treat such a tax as that we are considering as no tax upon property, but as a tax upon occupation, business or employment. Cases on the subject will be found cited in Cooley on Taxation; and there is one case, a very late one, in our own Reports, which seems in full accord with that theory: 52 Georgia Reports, 251. How to reconcile it with the prior decision in 37 Georgia Reports, cited above, is more than I know at present; though I will not say the thing is impossible. It is not unlikely that a close study of the facts in the latter of the two cases would show that the judgment of the court sustaining the tax on gross sales might have been put on the ground that, even as a tax on property, it was not invalid, because other property was subjected to as high a rate of taxation in the same city. It is not necessary now to pursue the inquiry further, since we have concluded, on full reflection, to put our judgment in the present case on the first, third and fourth points in the head-notes, leaving the question open of whether the tax is upon property or upon occupation. The judgment on the application for injunction would be the same, whichever way the true law of this question might be. Other decisions of this court to be examined, in classifying taxes, though not so directly in point, are: 42 Georgia Reports, 506; 49 Ibid., 195; 50 Ibid., 530; Wright & Hill vs. Mayor, etc., of Atlanta, 54 Georgia Reports, 645. 3. We have pronounced the ordinance invalid for the reason that it taxes non-residents only. We go further, and give it as our opinion, that were it a good ordinance, it would not apply to T. Gould & Company, for the reason that on the facts of the bill, answer and affidavits before us, T. Gould & Company, are not, in any sense known to the statutes of Georgia, or the charter of Atlanta, itinerant traders. This phrase, Gould & Company vs. The Mayor, etc., of Atlanta. itinerant traders, has no precise definition in our statutes, but it is used generally, we think, as meaning substantially the same as the word peddlers. It is certainly so used in the oldest act we have found on the subject, that of 1796: Marbury & Crawford's Dig., 383. Some of the subsequent acts, both in their caption and body, speak of peddlers and other itinerant traders, and yet, when they come to provide machinery for practical working, they seem to lose sight of any kind of trading but peddling. Thus the act of 1831, Prince's Digest, 613, taxes peddlers and other itinerant traders, who may carry about their wares and merchandise in wagons and other vehicles drawn by horses or mules, or packed upon horses or mules, or other animals of draught or burthen, and thus proceeds to tax peddlers or itinerant traders who may carry about their wares and merchandise on foot and without the aid of horses or mules or other animals. And the Code itself, except in the matter of selling by sample, seems to contemplate peddling only as the mode of itinerant trading. Any "peddler, or itinerant trader," who shall sell or vend, "without a license from the proper authority for that purpose," shall be punished, etc. Code, section 4598. "Every peddler or itinerant trader, by sample or otherwise," must be licensed: Code, section 1631. Now, observe that the license actually provided for is to peddle, and nothing else: "In regulating peddling and fixing the cost of license therefor:" Code, section 337, parapraph 9. "For license to peddle:" Code, section 528, paragraph 6. “To peddle within the county, unless otherwise provided by the ordinary under the law:" Code, section 529. One who "peddles" without a license forfeits $100 00 for the act of peddling : Code, section 533. Disabled soldiers authorized to "peddle" without paying for a license: Code, section 534. "The peddler" shall furnish evidence of good character and take an oath. The license must describe the person of the “peddler:" Code, section 1634. There must be a separate license for every wagon, cart or other vehicle, (or each horse if the "peddling" is done on horse-back,) employed or used in "vending such goods, wares or merchandise:" Code, section |