The trial court did not err in holding that Code (Ann. Supp.) § 16-427 prohibits the levying and collection by the City of Griffin of the license, franchise or occupation tax sought to be levied upon the plaintiff by the defendant.
DECIDED OCTOBER 21, 1949. The First Federal Savings and Loan Association of Griffin filed against the City of Griffin a petition praying for a declaratory judgment "that the . . 1949 license fee imposed by the City of Griffin by ordinance . . in the amount of $150 against petitioner for the privilege of conducting its . . business in Griffin, Georgia, is in conflict with and repugnant to Section 16-427 of the Code of Georgia, Annotated . . " No question was raised as *Page 218 to the amount or reasonableness of the license fee; or the power of the city generally to levy and collect a license tax. It was stipulated that "no question is raised as to the form of the ordinance, or the manner of its adoption, but it is agreed that the controversy involves only a question of law, namely: whether any municipality, including the City of Griffin is prohibited by Code Section 16-427 from imposing against First Federal Savings and Loan Association of Griffin any license fee, occupational tax, or other tax or assessment except a tax or assessment on real and personal tangible property according to its value owned by said association."
The plaintiff, First Federal Savings and Loan Association, contends that it is not subject to such license tax, and that Code (Ann. Supp.) § 16-427 prohibits the city from imposing or assessing any license fee or tax against the association other than a tax, based on value, on real and tangible personal property owned by the association, and has refused to pay said license fee. It was alleged that the City of Griffin has threatened, and proposes to issue execution against the plaintiff to enforce and compel payment of the said license fee; that the said license fee of $150 is not a tax on real or tangible personal property, according to the value thereof, but is a license fee imposed against associations of the type and character of the First Federal Savings and Loan Association of Griffin, for the privilege of conducting its business in said city.
The case was submitted to the Judge of the Superior Court of Spalding County, without a jury, on an agreed statement of facts, and the court held as a matter of law that the ordinance of the City of Griffin, "in so far as it purports to impose a license fee against the plaintiff association, is invalid, and is prohibited by" Code (Ann. Supp.) § 16-427. To that judgment the defendant excepted. Code (Ann. Supp.) Ch. 16-4 was codified from the Building and Loan Act which was approved December 24, 1937. This act defined building and loan and savings and loan *Page 219 associations and provided for their governance and regulation. It seems to be conceded that the plaintiff comes within the definition of savings and loan associations as set forth in this chapter. The section under consideration, § 16-427, reads as follows: "No State chartered association, as defined by this chapter, shall be assessed or subjected to taxation by the State, any county, municipality or other political subdivision taxing authority on its franchise, capital, reserves, surplus, loans, shares, or accounts; except that any real property and any tangible personal property not hereinbefore specifically mentioned, which may be owned by it, shall be subject to taxation to the same extent, according to its value, as all other real and tangible personal property is taxed. The foregoing section shall also apply to all Federal savings and loan associations with a home office located within this State." It is agreed also that the tax in question is neither a tax on capital, reserves, surplus, loans, shares or accounts, nor is it a tax on real or tangible personal property according to its value. Therefore the real and controlling question becomes whether or not the tax is a franchise tax within the meaning of the section and thus is prohibited.
What did the legislature mean by use of the word "franchise?" "The word `franchise' has been used to denote various meanings. The true meaning `is the privilege of doing that "which does not belong to the country generally by common right."' 23 Am. Jur. 714, § 2. The Code, § 92-2301, defines `special franchise,' and it will be observed that the term `special franchise' is the same as `franchise,' when the latter is used in its true sense. The section ends with the following expression: `But the term "special franchise" shall not include the mere right to be a corporation engaged in trading or manufacturing and exercising no specific franchise above enumerated,' it will be observed that the defendant and like corporations are not empowered to own a franchise, in the true sense of the word, which would be subject to taxation as property. Likewise, we know of no case in which a tax on capital stock has been called a `franchise' tax, so we are driven to the inescapable conclusion that the legislature did not use the word in its true sense, or as meaning `capital stock,' but used it in a loose and more general sense, as being synonymous with `license,' which in turn is *Page 220 synonymous with `occupation tax.'" Forrester v. Georgia MilkProducers Confederation, 66 Ga. App. 696, 698 (19 S.E.2d 183).
We think that the Code section under consideration plainly provides that no chartered association, as defined by this chapter, is subject to such taxation as set forth therein, and it is clearly shown that the plaintiff association is such as referred to in said Code section, and it is exempt from the said taxation. The word "franchise" as used in the Code section is used in the loose or general sense as being synonymous with "license" and "occupation"; under the Code section the plaintiff association is exempt from any license or occupation tax or fee for doing business in the City of Griffin; and the said ordinance of the City of Griffin, insofar as it attempts or purports to impose a license fee upon the plaintiff association is invalid and prohibited by said Code § 16-427.
The trial court did not err in holding as a matter of law that Code § 16-427 exempted the plaintiff association from the payment of a license or business tax imposed upon it by the City of Griffin.
This case was considered by the whole court as provided by the act approved March 8, 1945 (Ga. L. 1945, p. 232).
Judgment affirmed. Sutton, C. J., Gardner and Townsend, JJ.,concur. MacIntyre, P. J., and Felton, J., dissent.