8 S.E.2d 146 | Ga. Ct. App. | 1940
Lead Opinion
1. Unless a statute or ordinance passed by a duly-constituted legislative authority is violative of the limitations placed on the police power by the constitution, or, as is more commonly stated, unless it is repugnant to the constitution, it is not invalid. Such legislative authority may not unreasonably invade private rights, so as to violate such rights as are granted by the constitution.
2. If a vocation or business, or the manner of exercising it, is injurious to the rights of others, or is inconsistent with the public welfare, it may be regulated or prohibited altogether by the State or its delegated authorities.
3. The power to regulate, however, does not imply the power to prohibit entirely, unless such business comes within a class which may be declared harmful. The regulation imposed upon an ordinarily harmless business or vocation must not be unreasonable or arbitrary.
4. The right to contract, the right to earn a living, is fundamental, natural, and inherent, and is one of the most sacred and valuable rights of a citizen, and may not be violated without due process of law.
5. The regulation of a lawful business is dependent upon some reasonable *75 necessity for the protection of public health, safety, morality, or other phase of the general welfare.
6. "The right to follow any of the common avocations of life is an inalienable right." A person engaged in soliciting sales of lawful commodities, whether books, brushes, socks, tea, or insurance, is engaged in a lawful occupation.
7. A municipality has no authority by ordinance to declare a useful and per se perfectly lawful business a nuisance.
8. Police regulations of a trade or business deny due process of law if they are unreasonable, arbitrary, and extravagant in their interference with the property and personal rights of citizens.
9. Agents, solicitors, and peddlers of lawful commodities do not become nuisances by making calls at private homes within reasonable hours, where there is no circumstance to indicate that they are unwelcome by the individual home owner. Such visitation does not become a public nuisance punishable by imprisonment by the "ipse dixit" of a municipality.
This court is asked to declare the above ordinance unconstitutional, or unreasonable or arbitrary. In order to justify a court in pronouncing a legislative act unconstitutional or a provision of a State constitution to be in contravention of the constitution of the United States, the case must be so clear as to be free from all doubt. 11 Am. Jur. 719, § 92. This same rule of construction ordinarily is applied by this court in passing on the validity of ordinances of a municipality the charter of which gives to it the right to make or pass such ordinances. However, "Municipal ordinances must be reasonable. The limitations of the power of a city council in this regard are not to be measured by the more extensive powers of the State legislature." Mayor c. of Savannah v. Cooper,
The police power is an attribute of sovereignty, and a necessary characteristic of every civilized government. It is inherent in the State of Georgia, and in municipal corporations where there have been express grants by the State through their charters. It is an inherent power of government, because the existence of government, as well as the social order, security, life, and health of the individual citizen, depend upon it. In American government the police power is a grant from the people to their governmental agents. This is recognized by the constitution of Georgia, article 1, section 1, paragraph 1 (Code, § 2-101), which declares: "All government, of right, originates with the people, is founded upon their will only, and is instituted solely for the good of the whole." This police power may be said to be the bedrock of government; all other governmental powers are ancillary and corollary to it. Blackstone defines it as "The due regulation and domestic order of the Kingdom, whereby the individuals of the State, like members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood, and good manners, and to be decent, industrious, and inoffensive in their respective stations." Sweet v. Rechel,
When a law is attacked on the ground that it deprives a citizen of liberty or property without due process of law, we should call to mind that the underlying principle of laws passed under the inherent police power of the government is that it is the duty of each citizen to use his property and exercise his rights and privileges *78
with due regard to the personal and property rights of others. The old saying, "my right ends where your nose begins," though trite, is applicable. The safety of the people is the supreme law of the land. Justice Holmes, quoting approvingly from Camfieldv. United States,
If a vocation or business, or the manner of exercising it, is injurious to the rights of others, or inconsistent with the public welfare, it may be regulated or prohibited altogether by the State or its delegated authorities. In Clein v. Atlanta,
It may be well to state that this identical ordinance has been before the Supreme Court of this State. In Clay v. Mathews,
On the other hand the court in our sister State of South Carolina, in passing on an ordinance framed in language identical with that of the one in the present case, held that it was unreasonable and void. City of Orangeburg v. Farmer,
We do not mean to say that the individual is not entitled to the right of privacy, and that where he so desires he can not himself prevent a visitation by such solicitors; for to persist after notice *82 would be a trespass. Nor do we mean to hold that in such cases a municipality could not, by ordinance, aid in the prevention of such a trespass. But we do think that the unlimited imposition of a penalty on an uninvited solicitor who is carrying on a lawful and legitimate business in the usual way, manner, and time is an unreasonable and an arbitrary infringement of his rights.
Such an ordinance as this was upheld in City of Shreveportv. Cunningham,
In Meyer v. Nebraska,
An entry by a trespasser, as opposed to a licensee, implies an unwarranted or offensive intrusion on the premises. A license, with reference to a licensee, at least implies a permission to enter. Where the owner or occupant has indicated his unwillingness to have persons enter his premises we can readily see that such entry after such notice would constitute a trespass, and therefore that it might be deemed a nuisance. Where the law, in the absence of such notice, determines the status of the entry of such person on the premises as that of a licensee, it carries an implied permission. To arbitrarily declare that such act of a licensee is a nuisance is without the authority of the municipality. Police regulations of a trade or business deny due process of law if they are unreasonable, arbitrary, and extravagant in their interference with the property or personal rights of citizens. This ordinance arbitrarily declares, without any limitation, that it is a nuisance for a solicitor to go to *84
a private residence without first having been invited to enter on the premises. The Code, § 72-101, declares: "A nuisance is anything that works hurt, inconvenience, or damage to another; and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance. The inconvenience complained of shall not be fanciful, or such as would affect only one of fastidious taste, but it shall be such as would affect an ordinary reasonable man." In City of Acworth v. Western Atlantic Railroad Co.,
The decisions establishing these principles in this and other jurisdictions are numberless. In applying these principles to the ordinance in the present case we think it only necessary to say that it is an unreasonable interference with a property right, and has no reasonable or needed grounds for its enforcement. The householder can fully protect himself, or the municipality may aid in such protection when necessary. To arbitrarily declare, without qualification, that every solicitor who goes to a private home to try to conduct an otherwise perfectly legal business is a nuisance and subject to fine or imprisonment is an unreasonable interference with his normal, legal rights, without due process of law.
Judgment reversed. Broyles, C. J., concurs.
Dissenting Opinion
Where an ordinance of a city is aimed at the prevention of trespasses, annoyances, conflicts, disorders, and breaches of the peace, and otherwise is reasonably apprehensive and corrective in principle, it is a legislative exercise of local self-government or police power, and in no wise encroaches on local or interstate commerce. This ordinance does not operate as a total exclusion or deprivation of the rights of the citizens, but merely regulates their enjoyment for the benefit of the inhabitants (especially the housewives) of the city; and I think that the city authorities in the exercise of their legislative powers have the right to protect the home by saying that the commercial world shall not invade it and make it a public market place, and thus convert it into a place of business without the consent of the owner. If the owner of a home wished her groceryman to call every morning and take her order, she could of course instruct him so to do, and he would be an invitee; or she could invite any other person to her *85 home for any legitimate purpose. Can not the city legislative authorities put the burden on those seeking to do business with her to obtain an invitation to enter the privacy of her home, rather than to require the mistress of the home to mar her premises with signs of "no trespassing," etc.? The home stands, of course, on a very different footing in this regard from a store or office building which is maintained for the purpose of doing business. In short, I do not think that the making of money by carrying on commerce in the homes of the inhabitants of the city should be placed above the right of the inhabitants to be protected by law in the privacy of the homes. The legislature of the State has passed a law prohibiting hunting upon the land of another person, with or without a license, without first having obtained permission from such landowner. Why can not the authorities of a city prohibit going into the home without the consent of the owner, for purposes which do not come within the essential primary objectives for which the home was created?