142 Ga. 555 | Ga. | 1914
(After stating the foregoing facts.) -
In the growth of municipalities, where the population becomes dense, and new relations and new dangers arise, for the common welfare and protection more extensive power to cope with the new situation becomes necessary,—power to prohibit certain evils and to meet certain dangers. Hence arises the grant of power to regulate, prohibit, or license certain businesses within the municipal limits (in the proper sense of the word "license,” as distinguished from the imposition of a license tax for revenue). The authorities
Judge Dillon says: “Where the legislature, in terms, confers upon a municipal corporation the power to pass ordinances of a specific and defined character, if the power thus delegated be not in conflict with the constitution, an ordinance passed pursuant thereto can not be impeached as invalid because it would have been regarded as unreasonable if it had been passed under the incidental power of the corporation, or under a grant of power general in its nature. In other words, what the legislature distinctly
In the ease at bar, the business of keeping lodging houses is a legitimate business. The power to regulate and license it is conferred by express legislation. The question therefore arises upon the validity of the act of the legislature. In City of Buffalo v. Hill, 79 App. Div. 402 (79 N. Y. Supp. 449), an ordinance was adopted under a charter- power to regulate and license the sale of meats. The ordinance provided for the issuance of a license by the mayor upon direction of the council after a two-thirds vote. Spring, J., i-n delivering the opinion of the court, said: “The right of the individual to carry on any gainful, lawful occupation without municipal interference unless conducted in a manner detrimental to the public is guaranteed to him as one of his inalienable prerogatives. On the other hand, the right of the legislature, and by its delegation the municipality, to enact laws or ordinances for the preservation of the public health, even though individual loss results, is a necessary power incident to the government of cities. The maxim salus populi lex suprema est is more than a mere sentiment, and has become one of the props of the police power, an elastic mantle whose ample folds cover much municipal legislation which finds no other justification. Between these two clashing principles it is often difficult to determine when the action of the municipality transcends its powers and transgresses upon
For an arbitrary abuse of such power has the citizen no recourse in the courts? The authorities above cited do not sanction the conferring of arbitrary authority or its exercise. On the contrary, they sustain the general grant of discretionary power to issue licenses under the police power (certainly as to things which can not be prohibited, as the sale of whisky can be), on the ground that it does not seek to confer arbitrary power, and that if the power is sought to be arbitrarily and wrongfully exercised, the courts will apply a remedy. In City of Buffalo v. Hill, 79 N. Y. App. Div. 402, supra, it was said: “It will be observed that in some of the cases adverted to, the test upon which the discretion of the mayor was to be exercised was defined in the act or ordinance creating the authority, while in others there was no limitation placed upon it. It does not follow that the omission to prescribe the bounds of the authority carries the conclusion that it is vested arbitrarily in the official or body to whom it is committed. The difficulty of defining, in a given case, what standard shall be applied in the disposition of the petition, and the fact that the conservation of the public health is the basis for the existence of the authority, indicate the reason for the absence of the definition, but it is no warrant for the inference that the power is an arbitrary one to be exercised in ruthless disregard of the rights of any class or individual.” And again (p. 409) : “While it is unnecessary for us to pass upon the question of the power of the court to review a flagrant abuse of discretion by the common council, suffice it to say that if a case of that kind were properly presented the court would doubtless not lack the ability to find some effective way to reach it for condemnation.” In Yick Wo v. Hopkins, 118 U. S. 356, supra, Mr. Justice Matthews said (p. 373) : “Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution.” This, he said, was true, whatever may have been the intent of the ordinances as adopted. In other words,
In Reetz v. Michigan, 188 U. S. 505, supra, while the expression was used by Mr. Justice Brewer that the court knew of no provision of the Federal constitution which forbade a State from granting to a tribunal, whether called a court or a board of registration, the final determination of a legal question, if nothing in the State constitution prevented so doing, it is evident that he merely meant that there need be no provision in the statute for an appeal or certiorari, or like method of review, to satisfy the requirements of the constitution of the United States. He clearly did not mean that arbitrary and capricious action violative of constitutional rights was beyond remedy by the courts; for he distinctly said (p. 508-9) : “But while the statute makes in terms no provision for a review of the proceedings of the board, yet it is not true that such proceedings are beyond investigation in the. courts.”
In Lieberman v. Vandecarr, 81 App. Div. 128 (80 N. Y. Supp. 1108), a section of the sanitary code of New York prohibiting the keeping or selling of milk without a permit from the board of health was attacked as unconstitutional, on the ground that it conferred arbitrary power on the board. The Appellate Pivision of the Supreme Court of New York held that it was not intended to confer such absolute and arbitrary power in the selection of those who might and those who should not sell milk, but only the power to exercise a reasonable discretion. In the opinion it was said: “Such regulations, however, should be uniform, and the board should not act arbitrarily; and if this section of the sanitary code vested in them arbitrary power to license one dealer, and refuse a license to another similarly situated, undoubtedly it would- be invalid: Yick Wo v. Hopkins, 118 U. S. 356 [supra]; Gundling v. Chicago, 177 U. S. 183 [supra]; Noel v. People, 187 Ill. 587 [58 N. E. 616, 52 L. R. A. 287, 79 Am. St. R. 238]; Dunham v. Trustees of Rochester, 5 Cowen, 462; City of Brooklyn v. Breslin, 57 N. Y. 591; but such was not its purpose, nor is that its fair construction.” The decision of the Appellate Division was affirmed by the Court of Appeals of New York. 175 N. Y. 440.(67 N. E. 913,
In Re Jacobs, 98 N. Y. 98 (50 Am. R. 636), the Court of Appeals of New York discussed at some length the police power of the State. In the opinion Earl, J., said (p. 108) : “The limit of the power can not be accurately defined, and the courts have not been able or willing definitely to circumscribe it. But the power, however broad and extensive, is not above the constitution. When it speaks, its voice must be heeded. It furnishes the supreme law, the guide for the conduct of legislators, judges, and private persons; and in'so far as it imposes restraints, the police power must be exercised in subordination thereto.” The constitution of this State not only recognizes the necessary power of the courts to declare laws in violation of the State or Federal constitution void (a power already known to exist), but expressly declares it to be their duty to hold such acts void. Civil Code (1910), § 6392.
From what has been said, it will be seen that the legislature had power to confer on the municipal council authority to exercise a reasonable discretion in granting or refusing a license to one desiring to keep a lodging house or rooming house; and that the conference of this power in general terms did not ipso facto render the act void; but that the legislature could not constitutionally confer upon the council arbitrary or unlimited power, or prevent the citizen wronged by an arbitrary or capricious exercise of the power, not based on a legitimate use of discretion, from appealing to the courts to protect him from oppression.
In Peginis v. City of Atlanta, 132 Ga. 302 (63 S. E. 857, 35 L. R. A. (N. S.) 716), the power was claimed by the municipal, authorities of Atlanta to revoke any business tax license, and an illegal effort was made by an ex parte resolution to declare that the business of the keeper of a lunch counter or restaurant (who also sold cigarettes, cigars, tobacco, and “soda-fount drinks”) had been maintained in such manner as to become a nuisance, to revoke the license of the proprietor, and to compel him to cease business. He showed that irreparable damage would result from closing his business, or preventing him from continuing to conduct it, by means of continued prosecutions or otherwise; and he prayed for an injunction. This court held that he was entitled to it. In the opinion Mr. Justice Atkinson said: “If such power were conceded to the city authorities, they might refuse to allow any dry goods merchant, hardware dealer, hotel proprietor, confectioner, butcher, or baker to conduct his business, by simply refusing to issue him a business license, or might destroy his business at will, after its es
If we look to the allegations of the present petition, they set out, in substance, oppressive conduct on the part of the chief of police, strenuous and continuous efforts to find some violation of a law or ordinance on the part of the plaintiff or her lodgers, followed by failure, the perfectly proper conduct by her of the business in compliance with all laws and ordinances, and at a place unobjectionable for the purpose, the submission by her to imposition lest the chief should in revenge prevent her from obtaining a license, which was held up for more than two months, his efforts by letter and personally to prejudice the members of the committee of council, followed by arbitrary action on their part, based on no reason or investigation, and amounting to no real exercise of discretion. She further set out facts showing threats to stop her from doing business, by constant prosecutions in the recorder’s court, and danger of irreparable injury to property rights. The allegations are set out in the report of facts.
The municipal authorities did not see fit to deny the allegations of the plaintiff, but relied on a demurrer, which for the present purpose admits the truth of the allegations. They may or may not appear to be true on a hearing. But we think they set out a case sufficient to withstand a general demurrer. This does not, of course, mean that an injunction will be granted if the allegations of facts are not true: If it appears that they are untrue, and that the municipal officers have exercised a reasonable discretion in the matter, the court should not enjoin them. Nor will the court take the place of the council as a licensing authority. But that is a very different thing from contending that, conceding the facts alleged, a court of equity can afford no relief against the irrepara
Counsel for the city relied strongly on the ease of Starnes v. Atlanta, 139 Ga. 531 (77 S. E. 381). It was decided on a headnote ; and the facts set out show no reference to any constitutional point, but a ruling that the facts of that case placed it within the general rule rather than within the exceptions thereto. It was argued, however, that the various constitutional points raised in the present case were also raised by the record in that case, and that the dismissal of the petition on demurrer was affirmed by this court. An examination of the record on file will show several material differences in the two cases. No effort to declare the decision of the municipal officers to be final was then before the court. The kinds of business involved were different; in the Starnes case it was the conduct of a sanitarium for the treatment of persons afflicted with nervous troubles and of those addicted to the liquor and drug habit; here it is the conduct of a lodging or rooming-house for the accommodation of persons desiring a place to sleep. There it was charged in general terms that the municipal council acted arbitrarily in refusing a license. The general allegations on that subject were specially demurred to as vague and as failing to allege any facts in support of the general statement, and the defendant prayed that the paragraph of the petition on that subject be stricken. There was also an allegation that the ordinance was arbitrarily enforced. This likewise was specially demurred to, and it was prayed that this paragraph be stricken. The same is true as to the allegations seeking to set up irreparable injury, and those in regard to threats of numerous prosecutions. All of the grounds of the demurrer were sustained by the trial court. Such being the case, the ruling made by this court rested on different facts from those here involved. In the case now before us there was no special demurrer for want of sufficient specifications on any particular subject; but the defendant relied on a general demurrer. There is a difference in what will withstand a general demurrer and what will be good as against a special demurrer. Seaboard Air-Line Railway v. Pierce, 120 Ga. 230 (47 S. E. 581). Here also there were much more specific allegations of fact on the subjects mentioned, of arbitrary action and irreparable damage to property.rights.
We do not discuss cases arising on applications for mandamus, as no such point is here involved. We may only remark that our Civil Code (1910), § 5441, does not accord with some of the decisions as to the limitations upon such a proceeding. No question is raised as to the propriety of making the recorder a party.
The petition sets out a cause of action sufficient to withstand a general demurrer, and dismissing it on such a demurrer was error.
Judgment reversed.