City Council v. Sanders, No. 5626

No. 5626 | Ga. | May 3, 1927

Lead Opinion

Atkinson, J.

1. The act approved December 17, 1896 (Acts 1896, p. 119), amending the charter of the City of Augusta, confers express authority to require by ordinance payment of a “license tax upon any occupation, trade, or business followed or carried on within the corporate limits of the city,” except such as are “taxed exclusively by the State,” whether or not, the person carrying on the business “resides within said city limits.” But neither the provisions of the general welfare clause as contained* in section 3 of the original charter of the city, assented to January 31, 1798 (Marbury & Crawford’s [1802] Digest of the Laws of Georgia, 136), nor the conference of powers as expressed in sections 1 and 4 of the amendatory act approved August 15, 1922 (Acts 1922, p. 537), expressly or by necessary implication confer authority to refuse to grant a license to pursue a useful and per se perfectly lawful occupation such as the keeping of. a meat market and grocery business, or, .having granted such a license, to arbitrarily revoke it.

2. As to a useful and per se perfectly lawful occupation, such as the keeping of a meat market and grocery business, the City of Augusta has no authority to arbitrarily revoke a business license which for the purpose of raising revenues it has granted to the proprietor thereof, nor has it authority to revoke such license by ex parte action upon the part of . . the officers of the city or the mayor and city council, on account of the manner in which the business is conducted. If, after a futile attempt to revoke a license of the character above mentioned, the city attempts to prevent the proprietor from carrying- on the business for which the license was issued, by continuously arresting him and prosecuting him for conducting the business without a license, equity will afford the proprietor a remedy by injunction. Peginis v. Atlanta, 132 Ga. 302 (63 S.E. 857" court="Ga." date_filed="1909-03-10" href="https://app.midpage.ai/document/stark-v-cummings-5576688?utm_source=webapp" opinion_id="5576688">63 S. E. 857, 35 L. R. A. (N. S.) 716) ; Brown v. Thomasville, 156 Ga. 260 (118 S.E. 854" court="Ga." date_filed="1923-09-07" href="https://app.midpage.ai/document/brown-v-city-of-thomasville-5584587?utm_source=webapp" opinion_id="5584587">118 S. E. 854).

3. As the mayor and city council would have no charter authority to refuse a license of the character above mentioned, or, having issued a license, to revoke it, that body could not create such authority to revoke by provisions in the ordinance under which the license was issued, or in a pre-existing ordinance purporting to reserve the right to the city to revoke such license.

{a) A license of the character above mentioned is not revoked by the ■ mere act of a policeman, under direction of the mayor, in demanding and taking physical possession of the license certificate, and the subsequent ratification of such act by formal resolution of the city council.

4. Under application of the foregoing principles, the' judge did not err in overruling the general demurrer to the petition, or in granting a temporary injunction preventing- interference with the plaintiff in carrying on the business of conducting a meat market and grocery business under the license granted to him.

5. The mayor and city council did not attempt to abate the business as a nuisance, under the Civil Code (1910), § 5331, relating- to abatement of nuisances generally in cities having a population of twenty thousand pr more; or the place as a nuisance under the act approved December 19, 1899 (Acts 1899, p. 73, Civil Code (1910), § 5335), relating to abatement of “blind tiger” nuisances.

Injunctions, 32 C. J. p. 240, n. 51; p. 259, n. 9.

Licenses, 37 C. J. p. 187, n. 5; p. 238, n. 42; p. 240, n. 76; p. 247, n. 87, 88, 90, 91, 4; p. 248, n. 7; p. 262, n. 95.

Municipal Corporations, 28 Cyc. p. 745, n. 22; p. 748, n. 43.

No. 5626. May 3, 1927.

Judgment affirmed.

All the Justices concur. Archibald Blaclcshear, for plaintiffs in error. Peebles & Bowden, contra.

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Concurrence Opinion

Gilbert, J.,

specially concurring. When Sanders obtained his license from the City of Augusta there was in operation an ordinance, set out in the statement of facts, which provided that the license could be revoked “upon the conviction of the licensee for a violation of any law.” Sanders on the trial admitted that he had repeatedly violated and was convicted of violating a State penal law. “ One who accepts and acts under a license on the condition that it may be revoked at discretion, whether such condition is imposed by statute, ordinance, or the license itself, thereby assents to such condition, and is estopped to question the right to revoke, and such estoppel applies, even though no notice of an intention to revoke is given him.” 37 C. J. 247. Section 15 of ’the Political Code provides as follows: “Where, in the exercise of the police power, a license is issued, the same is not a contract, but only a permission to enjoy the privilege for the time specified, on the terms stated. It may be abrogated.” This section has reference expressly to licenses issued in the exercise of police power. As is ruled above, a city has no authority to arbitrarily revoke a business license it has granted to a person to carry on a business per se perfectly lawful. Such a license may be revoked upon just or reasonable cause, where the action taken is not arbitrary. In cases falling peculiarly within the police power, such as the operation of barrooms and pool rooms, the license may be revoked, in proper instances, without notice. In cases where the business does not fall within the police power, the rule is otherwise. Purvis v. City of Ocilla, 149 Ga. 771 (4) (102 S.E. 241" court="Ga." date_filed="1920-02-12" href="https://app.midpage.ai/document/purvis-v-city-of-ocilla-5582947?utm_source=webapp" opinion_id="5582947">102 S. E. 241). Meat markets, in a sense, would seem t'o be within that class falling within the police power; but for present purposes I treat them as classified with grocery stores. I concur in the judg: ment of affirmance solely on the ground that the license was revoked by the mayor and the council without due notice, thus depriving the licensee of his constitutional right of due process. I am aware that notice would have been of little, if any, protection or value, since the licensee admitted flagrant violation of the criminal law of the State, which undoubtedly afforded just cause for the revocation of his license, and also showed that the action of revocation was not arbitrary. Mr. Justice Hines joins in this special concurrence.