
    Woolworth Co. et al. v. Harrison, Comptroller-general, et al.
    
    No. 7818.
    February 12, 1931.
    ■ Davies, Auerbach & Cornell, Alston, Alston, Foster & Moise, Sullivan & Cromwell, Bryan, Middlebrooks & Carter, Gwinn & Pell, Dorsey & Shelton, Branch & Howard, J. Lon Duckworth, Jones, Evins, Powers & Jones, H. C. Holbrook, McElreath & Scott, Howell, Heyman & Bolding, Herman Heyman, Harold Hirsch, Marion Smith, W. 0. Wilson, Harmon E. Culler, Watkins, Asbill & Watkins, D. F'. Black, Lederer, Livingston, Kahn & Adler, McDaniel, Neely & Marshall, and E. H. Green, for plaintiffs. '
    
      George M. Napier, attorney-general, T. R. Gress, assistant attorney-general, Robert B. Troutman, Robert S. Sams, Frank Carter, and J. P. Wilhoit, for defendants.
   Per Curiam.

The tax act of 1929 (Ga. Laws 1929, p. 71, par. 109) provides: “Under the police powers of this State, the business of conducting chain stores and/or a chain of stores, for the selling of any kind of merchandise, hereby is classified as a business tending to foster monopoly; and there is hereby levied upon each and every such person, firm, or corporation owning, operating, maintaining, or controlling a chain of stores, consisting of more than five stores, the sum of $50 for each store.” Petitioners, alleging that the defendants are undertaking, under authority of said act to collect the tax of $50 on each and every store operated by petitioners, contend that the said act is -unconstitutional and void, because in conflict with designated sections of the State and Federal constitutions. The petition was attacked by demurrer, and the exception is to the sustaining of the demurrer. Held:

1. Under the uniform practice, the demurrer admits all allegations properly pleaded. The petition alleges that the State is seeking to collect the tax on each and every store, which, considered in connection with the language of the act, is construed to mean the levy of the tax on all of the stores of petitioners, and not merely those in excess of five.

2. Under the above construction, the classification attempted to be made is founded on the difference between one who owns or operates more than five stores on the one hand, and one who operates five or less on the other, the act imposing tax on one operating six stores or more, and refusing to tax one who operates five or less stores. Such classification is arbitrary and unreasonable, and is void because it is in conflict with (a) art. 7, sec. 2, par. 1, of the constitution of Georgia (Civil Code (1910), § 6553), (b) art. 1, sec. 1, par. 2, of •the constitution of Georgia (§ 6358); and (c) the fourteenth amendment to the Federal constitution (§ 6700).

Judgment reversed.

All the Justices concur, except Beck, P. J., absent for providential cause, and Hines, J., dissenting.

Hile, J., concurs in the result.  