137 Va. 75 | Va. | 1923
after making the foregoing statement, delivered the following opinion of the court:
1. Is the section of the ordinance, the enforcement of which is enjoined by the decree under review, non-discriminatory, in contemplation of law—that is, does it observe a natural and fair classification?
The question must be answered in the affirmative.
The general proposition is well settled that the legislative authority to adopt an ordinance such as that in question is conferred upon a municipality by charter powers of regulation, given by such a general welfare clause as that contained in the charter of the city in the instant case, unless it appears from the ordinance itself that it is unreasonable, in that, in its application, it denies the equal protection of the laws guaranteed by the fourteenth amendment of the Federal Constitution. The following authorities, among the many which might be cited on the subject, so hold. 7 McQuillin Mun. Corp., sec. 730, and cases cited; American Tobacco Co. v. Danville, 125 Va. 22-23, 99 S. E. 733, and cases cited; Hopkins v. Richmond, 117 Va. 718, 86 S. E. 139, Ann. Cas. 1917D, 1114, and cases cited; Gundling v. Chicago, 177 U. S. 183, 20 Sup. Ct. 633, 44 L. Ed. 725; Metropolis Theatre Co. v. Chicago, 228 U. S. 61, 33 Sup. Ct. 441, 57 L. Ed. 730.
It is also well settled that such an ordinance does not deny the aforesaid equal protection of th8 laws, so as to become unreasonable, merely because it applies to a particular business therein named. A reasonable classification is permitted by which a particular business may be singled out and regulated by the ordinance from a general class of businesses, which may be alike in general, the remainder of which being left unregulated, provided the discrimination is made upon some reasonable basis; and the latitude allowed
In Chicago, etc., R. Co. v. McGuire, supra (219 U. S. 549, 31 Sup. Ct. 259, 55 L. Ed. 328), the Supreme Court said this: “The principle involved in these decisions is that where the legislative action is arbitrary and has no reasonable relation to a purpose which it is competent for government to effect, the legislature transcends the limit of its power in interfering with liberty of contract; but, where there is reasonable relation to an object within the governmental authority, the exercise of the legislative discretion is not subject to judicial review.”
In Jeffrey Mfg. Co. v. Blagg, supra (235 U. S. 571, 35 Sup. Ct. 167, 59 L. Ed. 364), the Supreme Court said this: “This court has many times affirmed the general proposition that it is not the purpose of the fourteenth amendment in the equal protection clause to take from the States the right and power to classify
In Patsone v. Pennsylvania, supra (232 U. S. 138, 34 Sup. Ct. 281, 58 L. Ed. 539), this is said by the Supreme Court: “We start with the general consideration that a State may classify with reference to the evil to be prevented, and that if the class discriminated against is or reasonably might be considered to define those from whom the evil mainly is to be feared, it properly may be picked out. A lack of abstract symmetry does not matter. The question is a practical one dependent upon experience. The demand for symmetry ignores the specific difference that experience is supposed to have shown to mark the class. It is not enough to invalidate the law that others may do the same thing and go unpunished, if, as a matter of fact, it is found that the danger is characteristic of the class named.”
In Central Lumber Co. v. South Dakota, supra (226 U. S. 157, 33 Sup. Ct. 66, 57 L. Ed. 164), this is said by the Supreme Court: “What we have said makes it unnecessary to add much on the second point, if open, that the law is made in favor of regular established dealers. But the short answer is simply to read the law. It extends its force also to those who intend to become such dealers. If it saw fit not to grant the same degree of protection to parties making a transitory incursion into the business, we see no objection.”
It is likewise well settled that evidence aliunde is inadmissible to assail the motives which induced the enactment of an ordinance, for the purpose of determining its validity. People v. Gibbs, 186 Mich. 127, 152 N. W. 1053, 1055, Ann. Cas. 1917B, 830; Gardner v. Bluffton, 173 Ind. 454, 89 N. E. 853, 90 N. E. 898, 1912A Ann. Cas. 713; 7 McQuillin, sec. 732. Although such evidence is admissible to sustain the validity of the ordinance, and often has decisive force.
On the subject of the validity of an amendment of a city ordinance attempting to regulate the hours during which all auctioneers were thereby forbidden to conduct public auction sales or to sell goods at public auction, in People v. Gibbs, just cited, this is said: “The contention that this amendment was enacted for the purr pose of protecting or benefiting special interests, and was inspired by other motives than guarding the general welfare, is immaterial and cannot be considered here. Courts are not concerned with the motives which actuate members of a legislative body in enacting a law, but in the results of their action. Bad motives might inspire a law which appeared on its face and proved valid and beneficial, while a bad and invalid law might be, and sometimes is, passed with good intent and the best of motives.”
In accordance with the above mentioned general principles it has been uniformly held, as stated in 7 MeQuillin, sec. 964, that “Ordinances, prescribing
It is held in State v. Bates, 101 Minn. 301, 112 N. W. 67, that a city ordinance, adopted under the power to license and regulate auctioneers (both of which powers were also held by the appellee city in the instant ease), which altogether forbade auctioneers, although duly licensed, “to conduct any auction sale of jewelry or watches” under their license, is valid. In the opinion of the court in that case this is said: The question, then, is whether the ordinance is a reasonable regulation of auction sales, or an arbitrary prohibition of a material part of the business of an auctioneer, and, therefore, unreasonable and void. The regulation and policing of a business include reasonable and necessary limitations and restraints upon the business. Now auction sales of watches and jewelry are often mere schemes for trapping and defrauding the unwary, and a large discretion must be allowed the city council in determining what restraints or prohibitions it is necessary to impose upon the general business of a licensed auctioneer to effectually regulate and police the business. If there be any fair doubt on the question of the reasonableness of the ordinance, it must be resolved in favor of its validity; for the courts will not substitute their discretion for that of the municipal authorities. In re Wilson, 32 Minn. 146, 19 N. W. 723. We are of opinion that the restrictions and prohibitions of the ordinance in question are not unreasonable and hold that its enactment by the city council was authorized by the charter of the city.
It is held in Mogul v. Gaither, 142 Md. 380, 121 Atl. 32, that an ordinance of the city of Baltimore is valid, which prohibits the sale “at public auction” of “any gold, silver, plated ware, precious stones, watches, clocks, or jewelry” by any one, except that it allows such sales under certain conditions by those who may have been continuously in business in the city as merchants dealing in such articles for the period of a year next preceding the sales—not allowing such sales by others or by merchants who have not been in such business, or not in it for such length of time. In the opinion of the court this is said: “* * it is apparent that auction sales of the class prohibited may be attended with much greater risk to the public than auction sales permitted upon the conditions named, and that the classification made by the ordinance is not an arbitrary one, but one that has a reasonable relation to the object sought to be accomplished by it.”
It is also held in City of Buffalo v. Marion, 13 Misc. Rep. 639, 34 N. Y. Supp. 945, that an ordinance of the city adopted under the municipal authority to license and regulate auctioneers, which prohibited “the sale of watches at auction after 6 o’clock in the evening under a penalty of $50.00,” is a valid ordinance.
Only two cases of specific holdings are cited for the appellee as at variance with the conclusion we have reached above, and those are the case of David Rauch v. City of Norfolk, decided in November, 1914, by the circuit court of the city of Norfolk, and the case of People v. Gibbs, supra (186 Mich. 127, 152 N. W. 1053).
In the case of Rauch v. City of Norfolk, the ordinance was as follows: “No personal property of any kind whatever shall be sold at auction between 6:00 P. M. and 8:00 A. M.”—a provision being added imposing a penalty for any violation of the ordinance.
The sales which were being made by the plaintiff, Rauch, were auction sales of jewelry, within the forbidden hours, but the bill assailed the ordinance as a whole as in conflict with the fourteenth amendment of the Federal Constitution; and the validity of the ordinance depended, of course, upon the validity of its provisions forbidding the sale of all personal property at auction between the hours named.
The case was heard upon the bill, the answer of the city and the depositions in behalf of the plaintiff. The city introduced no evidence; and the court held the ordinance to be invalid.
The case is, therefore, distinguishable from the case before us, both by the fact that there was no evidence tending to show that experience in the city of Norfolk had demonstrated that there was any greater evil result
The same is true of the case of People v. Gibbs. In that ease the ordinance provided that “no person doing business as a duly licensed auctioneer shall operate a public auction or sell goods at public auction, * * * except on week days between the hours of 8 A. M. and 6 P. M.;” and provided a penalty for so doing. It does not appear what character of property was being sold at public auction in that case. But the classification was the same as in the ordinance involved in the Bauch Case—much broader and materially different from that of the ordinance involved in the instant case. Moreover, there too, there was an entire absence of evidence to sustain the classification made by the ordinance as having any reasonable basis for its discrimination; and upon this lack of evidence the court, in its opinion, comments more than once.
Further: The ordinance involved in People v. Gibbs contained other very elaborate and stringent provisions,
For the reasons above stated, we feel constrained to reverse the decree under review and enter final decree dismissing the bill, at the costs of the appellee.
Reversed and final decree.