164 Ga. 755 | Ga. | 1927
(After stating the foregoing facts.)
We are of the opinion that the court erred in refusing to enjoin the enforcement of section 2 of the ordinance in question. The amendment to section 2, which is shown in the evidence, did not remove the objectionable features of the ordinance. The questions made as to the validity of section 2 of the ordinance are important, but are by no means novel. The same questions have been' considered and decided by courts of last resort in several States of this country. While the precise question presented has not been ruled on by this court, decisions have been rendered by this court which announced principles that are applicable to the issues here presented. We can reach no other conclusion than that section 2 of the ordinance is not based upon a lawful classification, and that it is discriminatory. The provisions of section 2 are not
A case closely in point here is that of Yee Gee v. San Francisco, 235 Fed. 757, where the plaintiff, a native-born citizen of the United States but of the Chinese race, had for many years owned and conducted a public laundry in the City of San Francisco; and he brought his bill in equity to restrain the enforcement of an ordinance of the board of supervisors, regulating laundries, and particularly to restrain the enforcement of certain provisions thereof on the ground that they violated the 14th amendment to the constitution of the United States, and that such enforcement would deny to plaintiff the equal protection of the, laws and deprive him of his property rights without due process of law. The general assignment of invalidity involving the operation of the ordinance as a whole was “that it is unreasonable and arbitrarily discriminatory.” Among the features of the ordinance assailed was a provision limiting and restricting the hours of the day within which such business might be carried on and laundry work performed in a manner and to an extent which it was asserted rendered such restrictions wholly unreasonable and void as the exercise of the police power. This is the provision in the ordinance thus attacked: “Sec. 9. No person or persons owning or employed in the public laundries or public wash-houses provided for in section 1 of this ordinance shall wash, mangle, starch, iron, or do any other work on clothes between the hours of 6:00 o’clock p. m. and 7:00 o’clock a. m., nor upon any portion of that day known as Sunday.” The judge writing the opinion in that case said:' “Section 1 embraces within its terms all public laundries or wash-houses ‘within the limits of the City and County of San Francisco.’ It will thus be seen that the terms of section 9 apply to all laundries maintained in the entire territory embraced within the city limits, without regard to differing conditions existing in different sections
“ ‘And it is of the utmost consequence in a city subject, as San Francisco is the greater part of the year, to high winds, and composed principally within the limits designated of wooden buildihgs, that regulations of a strict character should be adopted to prevent the possibility of fires. That occupations in which continuous fires are necessary should cease at certain hours . . would seem to be, under such circumstances, a reasonable regulation as a measure of protection. At any rate, of its necessity for the purpose designated the municipal authorities are the appropriate judges.. The regulations in this matter are not subject to any interference by. the Federal tribunals, unless they are made the occasion for in
We have made this lengthy quotation from the case because it differentiates certain other cases decided by the Supreme Court of the United States, and other courts, which seem to announce principles relied upon by the defendant in the instant case.
In the case of Johnson v. Philadelphia, 94 Miss. 34 (47 So. 526, 19 L. R. A. (N. S.) 637, 19 Ann. Cas. 103), the Supreme Court of Mississippi had under consideration the question as to whether an injunction should be granted against the town to prevent the enforcement of an ordinance which required skating-rinks to be closed at 6 o’clock p.- m. Injunction was sought on the ground that the ordinance was not a reasonable exercise of the power given to the municipality “to regulate, suppress, and impose a privilege tax on skating-rinks,” etc. The'court held that the ordinance was unreasonable and void. In the course of the opinion it was said: “We can establish no fixed 'and permanent guide to settle in future cases . what is and what is not a reasonable exercise of the power of regulation. ' Each case must largely be determined by its own facts. In the Crittenden case we held that the municipality may provide the hours during which a place of business of the character under discussion may be kept open, etc., yet, when the hours prescribed ruin the business under the guise of regulating, such a regulation is unreasonable. The nature of the business being conducted forms an element for the consideration of the court in determining whether or not an ordinance is unreasonable as an ordinance regulating a business. It is unreasonable to say that a skating-rink shall be kept open only between the hours of 6 a. m. and 6 p. m., and such ordinances can not be upheld.” And the court quoted ap
In the petition it is prayed that the City of Atlanta and its officers be enjoined from enforcing so much of section 1 of the ordinance in question here as forbids colored barbers from serving as barbers children under the age of 14 years. The court granted the injunction as to that part of the ordinance, and the defendant in the cross-bill of exceptions assigns error upon that judgment. Reading the clause'“children under the age of 14 years” in connection with its context, we are satisfied that it was the intention of the council to make it applicable to white children only; and counsel for the city contend that such was the meaning. So construing it, we are nevertheless of the opinion that the court did not err in enjoining the enforcement of that part of the ordinance last referred to. As already seen, we have held that section 2 of the ordinance is void on the ground that it is unreasonable, and declined to rule upon the question as to whether or not it is void on the ground of its unconstitutionality.. But we are of the opinion that that part of section 1 the enforcement of which the court has enjoined is void as being in conflict with the provision of the 14th amendment of the constitution of the United States, and the similar provision in the constitution of the State of Georgia, which forbids the enactment of a law which deprives any person of life, liberty, or property without due process of law, or which denies to any person the equal protection of the laws. The right to carry on a lawful business is here denied to one class of the citizens of
In the case of Carey v. Atlanta, 143 Ga. 192 (84 S. E. 456, L. R. A. 1915D, 684, Ann. Cas. 1916E, 1151), it was said: “Sections 1 and 2 of the ordinance of the City of Atlanta, adopted June 16, 1913, and the corresponding sections of an amendment thereto, adopted November 3, 1913, prohibiting white persons and colored persons from residing in the same block, deny the inherent right of a person to acquire, enjoy, and dispose of property, and for this reason are violative of the due-process clause of the Federal and State constitutions.” Counsel for defendant, plaintiff in the cross-bill of exceptions, in their argument say that, “the Carey ease had this much similarity with the case at bar, that it dealt, to a certain extent, with the race question. Outside of this it has nothing in common. It related solely to property rights.” Conceding that this is true so far as it goes, we must not lose sight of the fact that that case, as well as the ease of Glover v. Atlanta, 148 Ga. 285 (96 S. E. 562), dealt with ordinances which might affect or limit the rights of property-owners, where the property-owner was colored, in a manner that would not have been applicable to a white person who was the owner in the same circumstances. In the Glover case it was ruled: “In Buchanan v. Warley, 245 U. S. 60 (38 Sup. Ct. 60, 62 L. ed. 149, Ann. Cas. 1918A, 1201), a case involving the validity of the ordinance of the City of Louisville, Ky., decided subsequently to the decision of Harden v. City of Atlanta, the Supreme Court of the United States held: ‘An ordinance which forbids colored persons to occupy houses in blocks where the greater number of houses are occupied by white, persons, in practical effect prevents the sale of lots in such blocks to colored persons, and is unconstitutional. A white owner, who has made an otherwise valid and enforceable contract to convey such a lot to a colored person, for the erection of a house upon it for occupancy by the vendee, is deprived, in violation of the fourteenth amendment, of an essential
In the case of Harden v. Atlanta, 147 Ga. 248 (93 S. E. 401), which was a case involving the validity of a race-segregation ordinance of the City of Atlanta, itself a reproduction of an ordinance adopted by the City of Louisville, Ky., this court in an opinion by a majority of the Justices held that such an ordinance was not repugnant to the fourteenth amendment to the constitution of the United States. But- subsequently the decision by this court in Harden’s case was reviewed upon request, and of course overruled in view of the decision in Buchanan v. Warley, supra, which was controlling upon the question involved. While the case of Carey and that of Glover dealt with property rights, this case deals with the right to labor, which is analogous to property rights and comes under the protection of the same laws which guarantee property rights. The right to purchase or sell labor is a part of the liberty protected by the fourteenth amendment; as is also the right to make a contract in relation to one’s business. In the case of Coppage v. Kansas, 236 U. S. 1 (35 Sup. Ct. 240, 59 L. ed. 441, L. R. A. 1915C, 960), the Supreme Court of the United States used this language: “Included in the right of personal liberty and the right of private property — partaking of the nature of each — is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment, by which labor and other services are exchanged for money or other forms of property. If this right be struck down or arbitrarily interfered with, there is a substantial impairment of liberty .in the long-established constitutional sense.” In the case of Truax v. Raich, 239 U. S. 33 (36 Sup. Ct. 7, 60 L. ed. 131, L. R. A. 1916D, 545, Ann. Cas. 1917B, 283), which involved the constitutionality, under the equal-
We do not think that evidence tending to show that a large percentage of the colored race is afflicted with a highly infectious disease would justify the classification upon which this ordinance is based. The ordinance does not limit the right of colored barbers to serve as’ such upon the ground that they are afflicted with the disease referred to. It is not based upon that contagious disease, but is based upon color. The operation of this ordinance would in its enforcement prevent a colored man who is free from any disease, and who may be able to demonstrate his freedom in this respect before any competent examiner, from serving white children. If the disease specifically referred to is so general as certain evidence which was offered and rejected tends to show, then the prevalence of that disease among the. members of the colored" race would also authorize, if it is competent for the city to pass this ordinance, an
The contention of counsel for defendant in error in the main bill of exceptions, that the ordinance involved in this case is not 'to be. confused with those laws looking to the segregation of races in public places, such as laws requiring equal and separate accommodations in railway carriages and laws which exclude members of the colored race from theaters and hotels which entertain white people only, and other similar laws, is sound. Within certain limitations these segregation statutes are generally and properly upheld, where they are merely regulatory, and do not destroy nor impinge upon property rights. The necessity for them grows out of social habits
There is no such error in the court’s ruling upon the admissibility of evidence as requires the grant of a new trial. Certain portions of the evidence offered by defendant and held by the court to be inadmissible were irrelevant and immaterial; and if all the evidence offered by the defendant had been admitted, it would not have authorized a ruling as to the first section of the ordinance different from that actually rendered by the court.
The city demurred generally, and presented to the court, among other things, the proposition that a court of equity has no jurisdiction to interfere in criminal matters either to enjoin the commission of a crime or its prosecution. The court ruled adversely to the defendant upon this contention, and the ruling was authorized under the contentions as shown by the pleadings. In the case of Morrow v. Atlanta, 162 Ga. 228 (133 S. E. 345), it is said by Mr. Chief Justice Russell: “The defendant insists that the ruling of the court was correct, because equity has no jurisdiction to enjoin a quasi-criminal prosecution, relying upon the ruling announced in Jones v. Carlton, [146 Ga. 1 (90 S. E. 278)], and cases cited. As pointed out in Brown v. Thomasville, 156 Ga. 260 (118 S. E. 854), while it is true that as a general rule equity will not restrain by injunction a threatened prosecution for a violation of a municipal ordinance, there is a well-recognized exception to this rule. The Jones case, supra, was controlled by the general rule, and is a type of a large number of cases, such as Eisfeldt v. Atlanta, 148 Ga. 828 (98 S. E. 495), and others which might be cited, but it is a principle equally well settled that, where a prosecution for a violation of a municipal ordinance is threatened which will prevent the exercise of a business which in and of itself is perfectly lawful, equity will enjoin a criminal prosecution.” See also the case of Brown v. Thomasville, supra. In the case of Carey v. Atlanta, supra, it was said: “While equity will not ordinarily enjoin a criminal prosecution (Georgia Railway & Electric Co. v. Oakland City, 129 Ga. 576, 59 S. E. 296), yet, where .repeated prosecutions are threatened under a void municipal ordinance, and the effect of such prosecutions would tend to injure or destroy the property of the person so prosecuted, or deprive him
Judgment reversed on the main bill of exceptions, and affirmed on the cross-bill.