51 Ga. App. 218 | Ga. Ct. App. | 1935
The defendant was convicted in the recorder’s court of the City of Atlanta of operating a curb market on Washington street in that city. It appears that he made application for a per
<e Whereas, the presence of curb markets has grown to be a nuisance in many sections of the city where they are now located, and Council should pass upon these locations frequently in order to protect the communities from such nuisances; therefore be it ordained by the Mayor and General Council as follows:
“ Section 1. That operators, owners, and managers of curb markets shall obtain a permit from the Council every six months, beginning with the first day of July, 1933, meaning by this that on or before that date the operators, managers, or owners of curb markets in the City of Atlanta shall apply and obtain the approval for the operation of these places and shall thereafter each six months from that date secure such a similar approval.”
“Section 3. All owners, operators, or managers of curb markets shall make an application to this body, giving the name of the owners, or manager of such curb markets, and the location of the same, together with the size of the market incorporated therein or used in connection therewith. Said application shall state whether or not a permit has heretofore been granted for such curb market, and shall give such other information as may seem advisable to the applicant. When this permit has been filed it shall be referred to the City Planning Commission, who shall give notice in a newspaper of general circulation in the city, the time and place of meeting for the consideration of same. After said hearings, upon such applications, the Commission shall report its findings to the Police Committee for their consideration. Before the Commission holds public hearings on such matters, it is the duty of one or more investigators from the Police Department, jointly with one or more investigators from the office of the Commission, to make a survey of conditions surrounding such locations, and to report jointly to the Commission at its hearings and the Police Committee at its hearings. After said hearings, upon such applications, the Police Committee shall report back to this body their findings either for or against the grant of permit for the operation of said curb market or markets, and Council shall thereupon take final action upon same.
“ Section 5. The above language defining the things that may be sold in said markets is general and not exclusive, and in construing same, the sale of articles in or on such places, being articles which are ordinarily sold at such markets and places, are included herein.”
The ordinance was attacked on the ground that it was unreasonable and void,- for that it declares curb markets to be a nuisance, and for that reason grants to the mayor and council the arbitrary authority to grant or withhold the right to operate the same “without any guide or reason other than the whim or caprice of such governing authority,” and thereby prevents any citizen from conducting a lawful business on his own property, however perfect or inoffensive such business may be, and because it grants authority to favor locations, rather thap. the character of the business operated, and tends to create a monopoly in those whose influence is sufficient to secure permits and prevents competitors from securing such permits; that it is not authorized by the charter of the City of Atlanta, that it is violative of the constitutional provision, “that private property shall not be taken or damaged for public use without just compensation being first paid;” that it deprives the owner of a curb market of his lawful business of operating the same and destroys the value of his improvements without compensation, and is violative of the due-process clause, and of paragraph 2, of article 1, of the constitution (Code 1933, § 2-102) which provides that “Protection to person and property is the paramount duty of government, and shall be impartial and complete.”
The right to transact a business within realms or bounds which are not contrary to public health, safety, morals, or policy is a property right, and must be preserved to the citizen without discrimination. Code 1933, §§ 2-102, 301; Schlesinger v. City of Atlanta, 161 Ga. 148 (129 S. E. 861); McIntyre v. Harrison, 172 Ga. 65 (157 S. E. 499). A citizen’s business is a property right, and as such is entitled to protection against discriminatory
In the ease of Howell v. Board of Commissioners of Quitman, 169 Ga. 74 (149 S. E. 779), it was held that the power conferred upon such municipality “To have full and complete control of the streets, sidewalks, alleys and squares of said city” gave to the city the power to enact ordinances for the convenience and safety of the public and to regulate traffic thereon, but did not give the city the power to prevent by ordinance the driving over such sidewalks of said city for the purpose of entering and selling or buying any gasoline or oil at a filling station located adjacent thereto. Such an exercise of power was a denying to the owner of the property of the right of property without due process and without providing adequate compensation for the taking or denying of this right. A filling station has been held not to be a nuisance per se. Standard Oil Co. v. Kahn, 165 Ga. 575 (141 S. E. 643). An act of the-General Assembly giving to the City of Albany power “to
In the case of Brown v. City of Thomasville, 156 Ga. 260, 269 (118 S. E. 854), it appears that the city refused license to a woman to conduct a drug store and sell cigars and cigarettes, and operate a soda fount, pending the trial of her husband for a violation of the prohibition laws. The court held that as to a “useful and per se perfectly lawful occupation . . the municipal authorities . . are not vested with a discretion to grant or refuse licenses or to revoke the same at will.” The case of Eisfeldt v. City of Atlanta, 148 Ga. 828 (98 S. E. 495), was distinguished. In that case the city refused a license to conduct a rooming house.
Regulations which are necessary to conserve the public safety are within the power ordinarily granted to municipalities, but prohibition of a property right is violative of our fundamental law. The charter of the City of Atlanta provides that the Mayor and Council may pass ordinances “and every other by-law, regulation, and ordinance that may seem to them proper for the security of the peace, health and order and good government of said city.”
Unless within exception noted, such authority does not give the power to such city to refuse the conduct of a business perfectly lawful in all other respects, such as a curb market, as defined in
Judgment reversed.