Kenny et al. vs. Harwell-Meyer et al. vs. McGowan. the basis of the amount of tax due, and may be levied and collected by tax-collectors under the usual forms of law. And for these reasons I concur in the judgment of the Court. WARNER, J., dissenting. This was a bill filed by the complainants against the Tax Collector of Fulton County, praying for an injunction, to restrain him from assessing a specific tax of $1,000 00 against each of them, for failing to return and pay the tax imposed by an Act of the General Assembly, passed on the 18th day of March, 1869, which provides for the laying a specific tax for educational purposes, of twenty cents per gallon, on every gallon of brandy, gin, whisky or rum, whether foreign or domestic, which is sold by any person, in quantities less than thirty gallons in this State, on the ground, that said Act is in violation of the Constitution of 1868. On the hearing of the case, the Court below dissolved the injunction and dismissed the bill for want of equity, to which the complainants accepted. The 27th section of the I. Article of the Constitution declares, that "taxation on property shall be ad valorem only, and uniform on all species of property taxed." The 3d section of the VI. Article of the Constitution authorizes the General Assembly to assess a special tax on shows and exhibitions, and on the sale of spirituous and malt liquors, for educational purposes. That the General Assembly have the power and authority, under the Constitution, to assess a special tax on the sale of spirituous and malt liquors, is not disputed; that spirituous and malt liquors are one species of property, cannot be denied. In what manner, then, according to a fair construction of the Constitution, is this special tax on the sale of this species of property to be assessed? Is it to be assessed ad valorem, on each gallon sold, or is a specific tax to be imposed on each gallon sold, without any regard to its value? In other words, has the General Assembly the power and authority, under the Constitution, to impose a specific tax of twenty cents per gallon on every gallon sold, regardless of Kenny et al. vs. Harwell-Meyer et al. vs. McGowan. the value thereof. It is conceded, that the General Assembly could not tax it as property, otherwise than ad valorem. If not, upon what principle can the General Assembly tax the sale of that property, otherwise than ad valorem? Whether spirituous or malt liquors are taxed as one species of property, or whether the tax is assessed on the sale of that species of property, the burden of taxation, whatever it may be, falls upon that property; and unless the tax imposed be an ad valorem tax, it will not be a uniform tax, as required by the Constitution. The argument, that there is a distinction between taxing spirituous and malt liquors ad valorem as property, and the taxing the sale thereof by a different mode, is too refined and shadowy to receive the approval of my judgment. If the General Assembly had imposed a tax of twenty cents on the value of each gallon sold, or on the value of the gross amount of spirituous and malt liquors sold by any person, then it would have been a lawful tax under the Constitution, but the Act imposes a specific tax of twenty cents per gallon on every gallon of brandy, gin, whisky, or rum, sold by any person, in quantities less than thirty gallons, without any regard to the value thereof. The mandate of the Constitution is, that taxation on property shall be ad valorem only, and uniform on all species of property taxed. And the same principle of taxation should be applied to property when sold-that is to say, when the General Assembly assess a tax on the sale of spirituous and malt liquors, that assessment must be made ad valorem in order to make it uniform. If one man sells nothing but brandy, worth $10 00 per gallon, and another sells nothing but whisky, worth $2 00 per gallon, and each has to pay a specific tax of twenty cents on each gallon sold, without any regard to the value thereof, the tax would not be uniform; the burden of the tax would operate unequally upon those who sold spirituous and malt liquors. And, therefore, the Act violates the principle ordained and established by the Constitution for the assessment of taxes, either Kenny et al. vs. Harwell-Meyer et al. vs. McGowan. on property or the sale thereof. If it is a correct principle of taxation, that it shall be uniform on all species of property taxed, why should not the tax be uniform on the sale of any species of property? In the case of Livingston vs. The City of Albany, 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 the 27th section of Article I. 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 $100 00 and another $500 00. 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. The complainants do not seek, by their bill, to enjoin the collection of any execution or distress-warrant issued for taxes, but to enjoin the collector from assessing a specific tax of $1,000 00 against each one of them for failing to make returns and pay a tax which is unconstitutional and void. In other words, they say that there is no tax due, as claimed, either under the provisions of the Code or any other law. Clearly, the tax claimed does not arise under any provision of the Code, which prohibits any judicial interference. I am, therefore, of the opinion that the judgment of the Court below, dissolving the injunction and dismissing the complainants' bill, should be reversed. Gullatt vs. Thrasher et al. H. GULLATT, prochien ami of MRS. BARNES, plaintiff in error, vs. JOHN J. THRASHER et al., defendants in error. JOHN J. THRASHER et al., plaintiffs in error, vs. H. GULLATT, prochien ami of MRS. BARNES, defendant in error. 1. It is error in the Judge of the Superior Court to dismiss a bill in vacation, except upon demurrer by the defendant. 2. The fact that a partnership engaged in the foundry business, took and executed a contract with the Confederate Government, to furnish certain munitions of war, is not of itself sufficient to so vitiate the genera proceeds of the business, as to render illegal a note given by some of the members of the firm to others, even though the note be based upon the proceeds of the general business. 3. Where the equity of the bill is denied by the answer and accompany. ing affidavits, this Court will not disturb the judgment of the Court below in dissolving the injunction. Equity Practice. Injunction. Before Judge PARROTT. Chambers. Fulton County. August, 1870. The bill of the next friend of Mrs. Barnes made this case against James E. Gullatt, as administrator of William Barnes, complainant's husband, and J. J. Thrasher, and other nominal parties. In October, 1862, James E. Gullatt, Rhodes and William Barnes, styled Gullatt & Company, agreed with Thrasher as follows: Gullatt & Company and Thrasher were to associate in the machine and foundry business; the amounts to be put in by the firm and by Thrasher were fixed; the firm was to have half the profits and bear half the losses, and Thrasher the other half. This firm was to last three years, unless sooner dissolved by consent, and at the end, the property was to be equally divided between the firm and Thrasher. One Harris was to represent Thrasher at Thrasher's expense, keep the books, and make contracts for the new firm. They were to work only for cash, except on "government work," and have settlements quarterly. Gullatt, Rhodes & Thrasher signed this contract, and Gullatt signed Barnes' name thereto. Barnes was then a soldier in the Con Gullatt vs. Thrasher et al. federate army; had left one Mecaslin as his sole agent, and Gullatt had no right to sign his name to said contract. To carry out this contract, these parties bought out Dunning's foundry, in Atlanta, Georgia, and contracted with the Confederate government to furnish it with implements of warfare, Gullatt signing Barnes' name thereto, without authority. They carried on the business till December, 1863. They then had a disagreement, because Thrasher, instead of advancing money, as he had promised, individually, had bor rowed money in the firm name, and owed the firm about $14,000 00. They stopped business awhile, because of this misunderstanding. Upon Harris' statement, it appeared that the firm owed Thrasher $12,123 00, and for that amount a note was given to Thrasher, dated the 15th of December, 1863, and due one day after date, signed by Gullatt, Rhodes and Barnes. Gullatt signed Barnes' name to said note, without authority, although Mecaslin refused to sign Barnes' name thereto, which was known to all the parties. Barnes received no consideration for this note, and knew nothing of it. If any, it was working for the Confederate States, in making war material, and the note is therefore void. In 1864, Barnes died. In 1865, Gullatt administered upon his estate. In March, 1866, Thrasher and Gullatt submitted the matters of difference between them to arbitration. The arbitrators determined upon said note, finding nothing against Barnes' estate, and that Gullatt owed Thrasher only $327 97. The submission is not exhibited. An award by two arbitrators, as to a matter submitted by "J. J. Thrasher and James E. Gullatt" was, that the settlement of December, 1863, disposed of matters prior thereto; that Gullatt owed now to Thrasher $327 97, upon payment of which Gullatt was to be discharged from said note of 15th December, 1863, and from another note, for $1,467 67, to Thrasher, made by Gullatt and Rhodes in December, 1863. Thrasher refused to abide by this award. Subsequently, Thrasher and Gullatt, intending to defraud Barnes' estate, on the 15th of April, |