19 S.E.2d 493 | Ga. | 1942
1. The act approved March 29, 1937 (Ga. L. 1937, p. 624), entitled "An act to provide that no person . . shall establish . . any public dance-hall, boxing or wrestling arena or amusement place, tourist-camps and barbecue-stands, for money or profit, outside the limits of incorporated towns or cities [of a certain population or more], without first obtaining the permission of the commissioners of roads and revenues or other authority in charge of such counties;" to confer authority on them to grant or refuse such permission for such time or under such regulations as they may deem proper for the public good; to levy a license or occupational tax on the same; to provide punishment for a violation of the act, etc., is not violative of any of the following constitutional provisions: (a) art. 1, sec. 1, par. 2, of the constitution of this State (Code, § 2-102), which reads as follows: "Protection to person and property is the paramount duty of government, and shall be impartial and complete;" and art. 1, sec. 1, par. 3, of the constitution of this State (Code, § 2-103), providing that "No person shall be deprived of life, liberty or property, except by due process of law." (b) The fifth amendment to the constitution of the United States (Code, § 1-805), which contains a similar provision. (c) The fourteenth amendment to the constitution of the United States (Code, § 1-815), which contains, in addition to a similar due-process clause, the further provision that no State shall deny to any person within its jurisdiction the equal protection of the laws. (d) Art. 3, sec. 1, par. 1, of the constitution of this State (Code, § 2-1201), which declares that the legislative power of the State shall be vested in a General Assembly, which shall consist of a Senate and House of Representatives.
2. It was not erroneous to refuse to sustain the demurrer to the indictment on the ground that that part of the act relative to "place of amusement" is so vague and indefinite that the same can not be made the basis of a criminal prosecution, in that it can not be determined from said act what sort of a business would constitute "a place of amusement."
3. The demurrer was properly overruled.
It would be a mere affectation of learning to trace the sources of these guarantees so secured, to recount what it cost in order to have them recognized as the inalienable rights of freemen. It would likewise be a vain thing to attempt here to pay a tribute to the wisdom of our forebears who in the bill of rights fixed a limit to the powers of those who govern, and created a sort of holy of holies as the refuge of the individual, the portals of which no legislative assembly has the power to enter. It is universally recognized that neither the government created by the union of the States, nor the State government, nor both combined possess absolute sovereignty over the individual, but that there are certain powers which the people, the source of all sovereignty, have never entrusted to any ruler or set of rulers, and have never surrendered them, and are retained by each individual, with the result that within this limited sphere all legislation which seeks to destroy or to a certain extent to control these inherent, inalienable rights of the individual, is null and void.
There are, however, few if any rights, although enumerated in what is generally referred to as the bill of rights, that are in all situations and under all circumstances free from all limitation, restriction, and qualification whatever. These rights in some cases are affected by the principle contained in the maxim salus populi suprema lex, which expression has been characterized by Judge Bleckley as the whole gospel of public policy condensed in a single text. Green v. Coast LineRailroad Co.,
The gist of the constitutional attack is that the act seeks to empower the county authorities to arbitrarily compel a person to discontinue the operation of a lawful business, however inoffensive said business may be, without affording such person an opportunity to be heard. The language of section 2 of the act would seem to negative the idea that the county commissioners were given the power to act arbitrarily; for it is therein declared that they "shall have authority to grant or refuse such permission, or to grant the same for such time and under such regulations as they may deem proper for the public good." InThomas v. Ragsdale,
In Phillips v. Head,
Cutsinger v. Atlanta,
2. That part of the act relative to a "place of amusement" is not so vague and indefinite that the same can not be made the basis of a criminal prosecution. The language is general, but not vague. It is broad in its terms, but not indefinite. Any place of amusement operated for money or profit, as specified in the statute and in the indictment, is sufficiently specific.
3. The demurrer was properly overruled.
Judgment affirmed. All the Justices concur.