
    WILLIAM LIVINGSTON, plaintiff in error, v. THE CITY COUNCIL OF ALBANY, defendant in error.
    (Atlanta,
    June Term, 1870.)
    TAXATION—POWER OF MAYOR AND COUNCIL TO IMPOSE—AD VALOREM TAX.—The Mayor and Council of the City of Albany has no power to impose a specific tax of one dollar per head on each horse or mule sold by drovers in said city. They may tax such sales ad valorem. ,
    Tax. Municipal Corporation. Constitutional law. Before Judge Clarke. Dougherty Superior Court. December term, 1869. .
    *In October, 1869, a fi. fa. was issued against Livingston, in favor of said city, for $282 00 for “his city tax” of that, year, and $93 00 costs, and was levied upon his property. He filed his oath that the fi. fa. was proceeding illegally, because the City Council had no right to levy said tax, because it was a special tax and not ad valorem. It was stated in the bill of exceptions, though not apparent on said papers, that said tax was for one dollar per capita upon horses sold by Livingston in Albany during 1869, and that this tax was- levied under an Ordinance of the city, quoted in the opinion. _ The illegality being overruled by the Mayor and Council, Livingston appealed to Judge Clarke for a certiorari, to correct their holding, on said grounds.
    He refused to grant the certiorari, and that is assigned as error.
    James Armstrong, (by brief,) for plaintiff in error.
    No appearance for defendant.
    
      
      T AX ATI-0 N—AD VALOREM TAX—In Meyer v. McGowan, 43 Ga. 416, where it was held that that portion of the general tax act of 1869 which levies for educational purposes a specific tax of twenty> per cent, per gallon on every gallon of brandy, gin, whiskey or rum,' whether foreign or domestic, sold by any person .in this state in quantities less than thirty gallons, is within the power granted to the legislature by art. 6, ¡§ 3 of the Constitution, and is not controlled by § 37 of the bill of rights, which provides that taxation on property shall be ad valorem only and uniform upon all species of property taxed. Warner, J., dissenting, said: “In the case of Livingston v. City of Albany, 41 Ga. 31, decided at the last term of this court, it was unanimously held that a specific tax of one dollar per head on each mule or horse sold by drovers, was void under the provisions of '§ 37, art. 1 of the Constitution of 1868, on the ground that such a tax, was not an ad valorem tax, as one of the animals sold might be worth one hundred dollars and another five hundred dollars. The principle decided in that case is applicable to and must, in my judgment, control this case. In that case the ad valorem principle of taxation was applied to the sale of property, by drovers, so as to make it operate uniformly upon that class of traders.”
      In Rome v. McWilliams, 53 Ga. 373, the court said:' “By the first section of the act referred to, the city council was authorized to assess a tax not exceeding one per cent, on sales made by persons selling goods on commission, and by registered firms, persons, companies and corporations. Under this the council imposed a tax of one-half of one per cent, on such sales, and allowed a deduction from the sales of the amount of stock on which a tax had been levied. The objection is that the act is unconstitutional, because it is in violation of that provision of the constitution already quoted, (art. 1, § 27), and if that be so, the ordinance, of course, would fall with it. The case of Livingston v. Albany, 41 Ga. 21, is cited to sustain this objection. But when the facts of that case are looked into, as well as the decision itself, there is no conflict between it and the one we now render. The headnote of that case is: ‘The mayor and city council of the city of Albany have no power to impose a specific tax of $1.00 per head on each horse or mule sold by drovers in said city. They may tax such sales ad valorem.’ The tax was $1.00 on the sale of every horse or mule sold in the city belonging to drovers, without regard to its value. It was held that this was in violation of the section of the constitution referred to. That was the only question in the case. It was not only put in the headnote that such sales might be taxed ad valorem, but it was said in the opinion that ‘a tax of a definite sum on each $100.00 of the value of all horses or mules under the protection of the city and sold within its limits, would be a legal tax,’ and further that the ‘legislature has power to impose pr authorize the authority of a city to impose a tax upon all such sales made by drovers, as they are a distinct class of traders, engaged in a distinct business or trade. But it must be imposed ad valorem.’ It is true it is said, ‘a tax on the sale of horses or mules, or upon horses and mules sold, is a tax on property,’ but this must be understood in connection with the question involved, to-wit: a tax of $1.00 on each horse or mule sold, without reference to its value, and not a percentage upon the amount of sales. It is nowhere said in that case that-a tax on sales, upon'the amount of sales, is a tax on property. A specific tax on the sale of an article, having no regard to its value, and a tax apportioned according to the amount of sales, whether gross or net,. are very different things. The first may be a property tax, but the latter is not, properly speaking, a tax on property, and is not obnoxious to the constitutional provision relied on.”
      See also, Gould v. Atlanta, 55 Ga. 685, citing the principal case.
    
   By the Court—

Brown, C. J.,

delivering the opinion.

The Act of 1858, amendatory of the charter of the city of Albany, authorized the Mayor and Council to levy such taxes as may be necessary for the support of said City government, and in such a way, as shall be deemed by them to operate most equally . on all the citizens and property within the corporate limits of said city. An Ordinance of the city declares “that the sum of one dollar be imposed on each and every horse or mule offered and sold within the city by or belonging to horse or mule drovers.” The 27th Section of the first Article of the new Constitution of the State provides that “taxation on property shall be ad valorem only, and uniform on all species of property taxed.”

We hold that the Statute of 1858 must yield to this provision of the Constitution, and must not be construed to confer upon the city authorities any power of taxation not possessed by the General Assembly over the property .of the State. A tax upon the sale of horses or mules, or upon horses or mules sold, is a tax on property; and the Legislature *has power to impose or authorize the authorities of a city to impose a tax upon all such sales made by drovers, as they are a distinct class of traders,' engaged in a distinct business or trade. But it must be imposed ad valorem. A tax of a certain sum on each horse or mule sold, is not an ad valorem tax, as one of these animals may be worth $100 00 and another $500 00. A tax imposed by the Mayor and Council of Albany, of a definite sum, on .each $100 00 of the 'value of all horses or mules, under the protection of the city government, and sold within its limits, would be a legal tax. As the city authorities had no right to impose the specific tax in question, the judgment of the Court below must be reversed.  