Forrester v. Continental Gin Co.

The plaintiff in error contends that this court has misconstrued the Code, § 92-2401, which reads: "All corporations incorporated under the laws of Georgia, except those not organized for pecuniary gain or profit, in addition to all other taxes now required of them by law, are hereby required to pay each year an annual license or occupation tax as specified in the following scale: [A graduated scale with amount of tax being set out.] (Acts 1929, pp. 84, 85; 1931, Extra. Sess., p. 76)." No reference is made to Code § 92-2403, which reads: "All corporations incorporated or organized under the laws of any other State, Territory, or Nation, doing business or owning property in this State, except those not operated for pecuniary gain or profit, in addition to all other taxes now required of them by law, are hereby required to pay each year an annual license or occupation tax for the privilege of carrying on their businesses within this State, as specified in the following scale: [A graduated scale with amount of tax being set out.] (Acts 1929, pp. 84, 85; 1931, Extra. Sess., pp. 76, 80)." As pointed out by this court, it is necessary to consider the entire legislation on the subject of occupational taxes, and such a consideration establishes that until the act of 1941 (Ga. L. 1941, p. 204) the legislature, in providing for such taxes, used only two *Page 131 classifications of corporations, (1) "all corporations incorporated under the laws of Georgia," and (2) "all corporations incorporated or organized under the laws of any other State," etc. By the act of 1941 the legislature specifically provided, for the first time, in dealing with occupational taxes, that "Domestic and domesticated foreign corporations are required to pay the same occupation tax as herein specified." Notwithstanding the fact that in the domestication statute of 1920, as amended by the act of 1926, it was generally provided that a domesticated corporation shall "be subject to the same obligations, duties, liabilities and disabilities as if originally created under the laws of this State," the classification used before 1941 overcomes the contention of the plaintiff in error in his motion for new trial that whether a domesticated corporation can escape taxation, as to occupational taxes, on the same basis as a domestic corporation it is immaterial to determine whether or not the plaintiff corporation was organized under the laws of another State. It is a fundamental rule of statutory construction that acts of the legislature in pari materia shall be construed together in order to determine the intent of the legislature. The domestication statute contains a general provision as to liability of a domesticated corporation "as if originally created under the laws of this State" but does not incorporate such a corporation as one "incorporated under the laws of Georgia," and by legislation on the special subject of occupational taxes the General Assembly has provided for collection of such taxes form corporations and has designated them under only two classifications. Until the act of 1941 (Ga. L. 1941, p. 204) no intention was manifested by the legislature, as to occupational taxes, to place a domesticated foreign corporation on the same basis as a domestic corporation. In 1935 (Ga. L. 1935, pp. 11, 25) the legislature specifically provided in paragraph 43 of section 2 of the act relating to occupational taxes that "domesticated foreign corporations" were excepted from paying on the same basis as corporations incorporated under the laws of Georgia, thus necessarily leaving them in the other classification mentioned in paragraph 44 of section 2 of the act, "all corporations incorporated or organized under the laws of any other State," etc. The act of 1935 was entirely free from ambiguity, and was an affirmative declaration of the class of corporations from which a domesticated foreign corporation was to be excepted, *Page 132 i. e., excepted from corporations incorporated under the laws of Georgia, and removed any doubt, if any could reasonably arise, as to whether or not such a corporation could, under the act of 1929 (Ga. L. 1929, p. 84), as amended by the act of 1931 (Ga. L. Ex. Sess. 1931, p. 76), be held liable for payment of occupational taxes on the basis of a corporation incorporated under the laws of Georgia, as provided for in paragraph 44 of section 1 of each act, rather than being subject to liability only as a corporation incorporated or organized under the laws of any other State, etc.

Before and after the enactment of the domestication statute the legislature made special provision for the collection of occupational taxes from the corporations. In 1913 (Ga. L. 1913, p. 34), in 1923 (Ga. L. Ex. Sess. 1923, p. 20), and in 1927 (Ga. L. 1927, p. 56) it had provided for such taxes, both as to domestic and foreign corporations, based in each case on the amount of the capital stock of the corporation. Until the act of 1927 was superseded by the act of 1929 (Ga. L. 1929, p. 84) no question could reasonably have arisen whether a domesticated corporation was liable for occupational taxes on the basis of a domestic corporation or on the basis of a foreign corporation, because in each case the tax was based on the entire capital stock of the corporation. In the act of 1929, amending the general tax act of 1927, it was provided that a corporation incorporated under the laws of Georgia should pay on the basis of the "issued capital stock" and that a corporation incorporated or organized under the laws of another State should pay on the basis of "capital stock and surplus employed in this State." Paragraph 44 of section 1 of that act, as amended by the act of 1931 (Ga. L. Ex. Sess. 1931, p. 76), has been codified as "All corporations incorporated under the laws of Georgia, except those not organized for pecuniary gain or profit, in addition to all other taxes now required of them by law, are hereby required to pay each year an annual license or occupation tax as specified in the following scale" etc., and the plaintiff in error contends that this Code section, as well as the general provision of the domestication statute, requires a holding that the plaintiff corporation is obligated to pay occupational taxes on the same basis as a domestic corporation. But in the act of 1929 the legislature maintained, with full knowledge of the domestication statute, the same two classifications it had theretofore employed, (1) all corporations incorporated under the laws *Page 133 of Georgia and (2) all corporations incorporated or organized under the laws of any other State, etc., and section 1, paragraph 45, of that act, as amended by the act of 1931, supra, it was provided that the second class of corporations should pay on the basis of "capital stock and surplus employed in this State," the subject-matter being codified (§ 92-2403). In the act of 1929 it was further provided: "Be it further enacted by the authority aforesaid, and it is hereby enacted by authority of the same, that all laws and parts of laws in conflict herewith be and the same are hereby repealed." The domestication statute of 1920, as amended by the act of 1926, had not at that time been codified, and, hence, to destroy the effect of any provision of the domestication statute it was not necessary for the legislature to refer to any Code section, but it was sufficient to enact that "all laws and parts of laws in conflict herewith be and the same are hereby repealed."

It is clear, therefore, that the legislature, in maintaining the two classifications of corporations, and cognizant of the general provision of the domestication statute of 1920, as amended by the act of 1926, did not intend that a domesticated foreign corporation should be liable on the same basis as a domestic corporation, a corporation organized under the laws of Georgia, but on the basis of a corporation organized under the laws of another State, etc., and to prevent any impression that the general provision of the domestication act of 1920, as amended by the act of 1926 (subsequently codified, § 22-1601), that a domesticated corporation should be "subject to the same obligations, duties, liabilities, and disabilities as if originally created under the laws of this State," would control as to the payment of occupational taxes by a domesticated foreign corporation rather than the classification of "corporations incorporated or organized under the laws of any other State," etc., enacted that "all laws and parts of laws in conflict herewith be and the same are hereby repealed." To uphold the general provision of § 22-1601 (as contended by the plaintiff in error) as requiring payment of occupational taxes by a domesticated foreign corporation on the same basis as a domestic corporation would certainly be to hold, at the same time, that it conflicts with the special provision of the legislature as to payment of occupational taxes by a foreign corporation. Under the particular provision of the legislature above quoted, the general provision of *Page 134 Code § 22-1601 would be of no force as respects collection of occupational taxes from a foreign corporation, though domesticated in Georgia, and even if it could be said that the general provision was unaffected by the subsequent repealing provision of later acts, the rule of construction that statutes in pari materia should be construed as one single scheme of legislation would require a holding that generally a domesticated corporation would be subject to liabilities as if created under the laws of this State but as to occupational taxes would be liable only on the basis of a foreign corporation, that is, one incorporated or organized under the laws of another State.

The plaintiff in error requests that this court state specifically whether or not the present suit is properly brought against the Commissioner of Revenue. In the opinion of this court it was said that "the action was authorized under § 34 (b) of the act of 1938 (Ga. L. Ex. Sess. 1937-38, pp. 77, 95), codified as § 92-8436 in the cumulative pocket supplement to the annotated Code of 1933." The action was brought against the predecessor of the present commissioner "in his official capacity as commissioner of the Department of Revenue of the State of Georgia," and is therefore a suit against the State. Southern Mining Co. v.Lowe, 105 Ga. 352, 356 (31 S.E. 191); Ramsey v.Hamilton, 181 Ga. 365 (2) (182 S.E. 392); Cannon v.Montgomery, 184 Ga. 588, 591 (192 S.E. 206); Roberts v.Barwick, 187 Ga. 691, 695 (2) (1 S.E.2d 713); Pennoyerv. McConnaughy, 140 U.S. 1, 9 (11 Sup. Ct. 699,35 L. ed. 363). To bring an action against the State the consent of the State must be had. Such consent was given in the act of 1938, supra, in section 34 (a), (b).

Wright v. Forrester, 192 Ga. 864 (16 S.E.2d 873), cited and relied on by the plaintiff in error, is not contrary to what is here ruled. In that case it was merely held that mandamus did not lie against the then State Revenue Commissioner to compel him to approve a claim for refund of certain sums alleged to have been illegally exacted where a suit was maintainable against the State for refund.

Rehearing denied. Stephens, P. J., and Felton, J., concur. *Page 135