I concur in the judgment, but can not agree to all 'of the reasoning of the Chief Justice. I do not think that the •ordinance in question seeks to tax merely the act of delivering ¡articles mentioned in the ordinance. It seems to me that a proper •construction of the ordinance is that an occupation tax is levied ~upon persons engaged in the business of carriers, who in that capacity transport into the City of Lawrenceville and there deliver ¡articles of the character mentioned in the ordinance. It is true that the ordinance declares it to be unlawful “to deliver or cause to be delivered” the articles of the character mentioned; but I do not think that the word “deliver” there is to be construed in its limited •sense, the mere final act of transportation, but the, ordinance construed as a whole is an effort to impose an occupation tax upon all persons ¡engaged in the business of transporting intoxicating liquors into the City of Lawrenceville.
I fully concur with what has been said by the Chief Justice as to the ordinance not being justified under the police power. The ordinance not being authorized under the police power, it is therefore to be determined whether it can be justified under the taxing power. The charter of the City of Lawrenceville in broad terms authorizes the imposition of an occupation tax upon persons engaged in business in that city. The authority to impose an occupation tax carries with it the authority to classify the occupations for taxation. City Council of Augusta v. Clark, 124 Ga. 254. In exercising the power of classification the city authorities must, however, be reasonable, and an arbitrary or unreasonable classification will not be per*595mitted, and the courts will declare invalid a tax npon a given class when the classification is palpably arbitrary and unreasonable. The ordinance in question deals with the occupation of carriers. It has been held that a municipal corporation, under a general power to levy occupation taxes, can not impose an occupation tax upon what is known as a commercial railroad, as distinguished from a street railroad. City Council of Augusta v. Central Railroad, 78 Ga. 119. I do not think that this decision is sound, hut of course it must be respected as the law until it is overruled. I see no reason why a municipal corporation, under a general power to levy occupation taxes, can not levy an occupation tax upon commercial railroad companies engaged in the business of common carriers in the city, just as they levy an occupation tax upon telegraph, telephone, and similar companies. The City of Lawrenceville imdoubtedly has power to impose an occupation tax upon carriers, subject only to the restrictions imposed by the decision above referred to. They therefore have the right to classify carriers for the purpose of taxation. They may place common carriers in a class to themselves, and carriers other than common carriers in another class, and possibly might make a further subdivision of the general business of carriers. When they are dealing with the subject of common carriers, it certainly would not be unreasonable to place common carriers of goods, common carriers of passengers,- and common carriers of live stock in different classes. There would be nothing unreasonable or arbitrary about such a classification, because it is a classification that not only the law hut the commercial world recognizes as just and reasonable. But if it put into one class common carriers of goods, how much further can the classification extend? Can they divide this class into subordinate classes of carriers of liquors, carriers of dry goods, carriers of hardware, etc., etc. ? If so, in any city where a common carrier is engaged in business a separate tax upon such a carrier for every character of goods known to the commercial world could be imposed, and a tax, although small and insignificant in amount, on each class of .goods would in .many places amount to a confiscation of the entire earnings of the carrier derived from the business going to that place. I do not think that a classification further than into the three great classes known to the law and the commercial world would be' reasonable and proper, and to allow the classification to extend *596further would be placing into the hands of a municipal corporation. a power that it can not be presumed that the General Assembly ever intended' should pass to the subordinate public corporations, of the State under a general power to impose a tax upon occupations. The ordinance^ in question imposes a tax upon carriers of liquors and makes this a business. A person engaged in the business of carrying liquors into the City of Lawrenceville and in no other business could be compelled to pay the tax. But applied to a common carrier who is not only engaged in carrying all the. legitimate articles of commerce, but is compelled by law to receive for shipment all of such articles, an ordinance requiring that a. common carrier should pay a tax for the privilege of carrying this, one class of the articles transjoorted by it, and a very small class-compared to the entire business of the company, is unreasonable and. arbitrar)'', and should ’be declared void for want of power in the, city to enact the ordinance providing for it, in so far as it attempts, to levy a tax upon common carriers of goods.
CANDLER,. J.In my opinion, it is immaterial whether the ordinance in question is valid or not. The Southern Express Company is a common carrier, and, regardless of the ordinance of the City of Lawrenceville, it must accept the liquor, carry it to its destination* and deliver it to the consignee. This being expressly held by the. opinion of the Chief Justice, I think that it will be proper to deal with the validity of the ordinance in question only when it is properly brought in question by the party who, under its provisions, is. required to pay the license fee. _