Mayor of Savannah v. Savannah Distributing Co.

43 S.E.2d 704 | Ga. | 1947

Lead Opinion

The policy of the State relating to intoxicating beverages and liquors was fixed by the act of 1938 (Ga. L. 1937-38, Ex. Sess., p. 103). It is there declared that the State Revenue Commissioner shall administer the law and that he may not revoke without cause and a hearing a license issued thereunder. A municipal government, after adopting an ordinance pursuant to the State law, wherein provision is made for the sale of licenses for one year unless sooner revoked for violation of rules and regulations therein, is without power to arbitrarily and without cause discriminate between such licensees by revoking one license and not those of others who occupy exactly the same position. Accordingly, the petition, alleging the payment of $2000 to the City of Savannah for a wholesale liquor license and the arbitrary revocation of such license by the city when the licensee had violated no law or regulation under the ordinance, and seeking to enjoin the city authorities from interfering with the continued business under the license, set forth a cause of action.

No. 15843. JULY 10, 1947. REHEARING DENIED JULY 22, 1947. Savannah Distributing Company Inc. filed in the Superior Court of Chatham County a petition against the Mayor and Aldermen of the City of Savannah, which petition as amended alleged the following: The defendant is a municipal corporation chartered, created and existing under the laws of the State of Georgia. The Mayor and Aldermen of the City of Savannah and the City of Savannah are in Chatham County, Georgia, which had prior to 1940 voted in favor of taxing and controlling alcoholic beverages and liquors therein, pursuant to the act of 1938 of the General Assembly of Georgia. The plaintiff has for a number of years past been engaged in Savannah in the business of a wholesale liquor dealer and distributor, and has heretofore been licensed to do business by the State of Georgia and the defendant. On December 11, 1946, the plaintiff applied to the defendant for a license to sell at wholesale, liquors in Savannah for the year 1947. The application was approved and on January 2, 1947, the defendant issued to the plaintiff license No. 31, entitling it to do business in the City of Savannah, said State and County, as a wholesale liquor dealer for the year 1947, the plaintiff having paid the defendant the sum of $2000 for the said license. The said license was issued under and by virtue of an ordinance adopted and approved May 27, 1935, and found in the Code of the City of Savannah of 1945 in sections 58-199 to 58-205, inclusive, all of which were set out in an exhibit attached to the petition; and it was alleged that all portions of the ordinance were operative and in full force since their enactment in 1935 and up to and including February 19, 1947. Section 58-199 provided that from and after June 1, 1935, every person, firm, or corporation carrying on or intending to carry on the business of selling at wholesale or at retail alcoholic beverages within the City of Savannah should obtain a permit, the method for obtaining the same being specified in this section. Section 58-200 made certain regulations as to action upon applications for permits, and provided that a permit when granted was subject "to be revoked at any time by the Mayor and Aldermen of the City of Savannah in the manner hereinafter provided. The person, firm, or corporation to whom such permit shall be issued shall take such permit subject to the same being revoked at any time as herein provided." Section 58-201 fixed the license fees, providing that in the case of a wholesaler the license fee should be $2000. Section 58-202 is not here involved. Section 58-203 provided regulations for governing the business of selling alcoholic beverages, locations, hours of sale, etc. Section 58-204 provided: "It shall be unlawful for any person, firm, or corporation to whom a permit has been granted under this ordinance, or for any other person, firm, or corporation, to sell, to offer for sale, or keep for sale, in his place of business any alcoholic beverages or any commodity or article of merchandise which such person, firm, or corporation is not permitted to have, sell, or possess under the terms of the permit or license issued for his place of business by the Mayor and Aldermen of the City of Savannah, or which is not covered by or included in such license. The presence of such alcoholic beverage, commodity, or article of merchandise in the place of business of any such person, firm, or corporation shall be held to be prima facie evidence that the same is possessed for the purpose of illegal sale, and the burden shall be upon the accused to explain such possession in any trial involving a violation of this section." Section 58-205 provided as follows: "If any person, firm, or corporation to whom a permit has been issued under the foregoing sections shall violate any provisions therein, or any of the rules and regulations provided for the conduct of his place of business, and such person, firm, or corporation is convicted in the police court of Savannah of such violation, thereafter the Mayor or the Mayor and Aldermen of the City of Savannah is hereby vested with the power and authority to immediately revoke such permit, which revocation shall continue until the next meeting of Council of the Mayor and Aldermen of the City of Savannah, when and where such person, firm, or corporation whose permit has been so revoked may appear and be heard and show cause, if any, why such revocation of such permit shall not be confirmed by Council. If such action of the Mayor in revoking such permit is confirmed by Council, or if the action of the Mayor in revoking such permit without the holder thereof being convicted in police court in the form and manner hereinafter set out, is confirmed by Council, then the holder of such permit shall no longer engage in such business, the amount paid by him as a license fee shall be forfeited to the Mayor and Aldermen of the City of Savannah, and if such person thereafter continues to do business, he shall be subject to prosecution in the police court of Savannah of doing business without a permit and without a license and punished accordingly. The Mayor or the Mayor and Aldermen of the City of Savannah is further hereby vested with power and authority to revoke the permit of any person, firm, or corporation holding a permit, without such person, firm, or corporation being convicted in police court, when in the opinion of the Mayor facts and evidence are presented to him from which he determines that probable cause exists to suspect the guilt of the holder of such permit of a violation of this ordinance, provided, however, that where the Mayor revokes such permit under such circumstances, the holder of such permit shall have due notice of the revocation of such permit and shall have the right to appear before the next ensuing meeting of the Mayor and Aldermen of the City of Savannah and there show cause why his permit should not be revoked and why the revocation by the Mayor should not be set aside." It was alleged that section 58-205 became an irrevocable part and portion of the plaintiff's license to do business, and the following allegations were made: On February 19, 1947, the defendant passed, at one and the same meeting of Council, a resolution repealing section 58-205 of Grayson's Code of the City of Savannah, and thereafter passed a resolution revoking license No. 31 which had been issued to the plaintiff on January 2, 1947. The said action was taken by the defendant without any notice whatsoever to the plaintiff, and no just or legal cause existed for the revocation in the manner aforesaid. The plaintiff had not violated any law or ordinance and had not been guilty of any act whatsoever justifying the defendant to revoke its license. Its business is a legal business, authorized by the laws of the State of Georgia, under which the plaintiff's license as a wholesale liquor dealer, issued to it by the proper authority of the State, could not be revoked by the State without notice to the plaintiff and without just and legal cause and only after notice and hearing before the Revenue Commissioner or other proper authority of the State. The business of the plaintiff is not one within the police powers of the State or of the defendant. Its business is conducted in a warehouse where few, if any, people come or congregate, and the orders for the sale of its products are taken by salesmen away from the place of business, by letter or over the telephone, and it is not possible for any disorder to take place at its place of business or for any violations of law which would disturb the peace and good order of the community. It differs, therefore, legally from retail liquor dealers, pool rooms, or dancehalls or other businesses which fall within the police powers of the State and of the defendant. Regardless, however, of whether the plaintiff's business falls within the police powers and police regulations of the State and of the defendant, the defendant has no charter power to revoked the plaintiff's license to do business except for just and legal cause and upon due notice and a hearing. The defendant's charter power with reference to issuing licenses is confined to the following, as set forth in section 57-101 of Grayson's Code of the City of Savannah: "The Mayor and Aldermen of the City of Savannah are hereby vested with full power and authority to make such assessments and lay such taxes on the inhabitants of said city and those who hold taxable property, within the same, and those who transact, or who are to transact business therein, as said corporate authorities may deem expedient for the safety, benefit and convenience and advantage of said city, and may enforce the payment of such assessments and taxes in such manner as said Mayor and Aldermen may prescribe." The action of the defendant in revoking the plaintiff's license, and without a hearing, will cause the plaintiff's business to be closed by the defendant unless granted relief by the court. The plaintiff has on hand a large stock of liquors of the value of many thousand dollars, which it will be unable to dispose of it is not permitted to continue its business. The plaintiff has in several years past built a large and lucrative business which will be destroyed if it is not permitted to continue business and if the court does not grant relief. It has no full, complete, and adequate remedy at law. By reason of the fact that the provisions of section 58-205 of the City Code became an irrevocable and inseparable part of the plaintiff's license and an implied contract with it, the repeal and revocation of the section and portion providing for notice and a hearing before revocation and the revocation of the plaintiff's license were and are unconstitutional, null, and void, and in violation of the following provisions of the Constitution: (a) Article 1 of section 10 of the Constitution of the United States, providing that no law impairing the obligation of contracts can be passed. (b) Section 3 of the Constitution of Georgia, paragraph 2, prohibiting the passage of any law impairing the obligation of a contract. (c) Paragraph 3 of the bill of rights of the Constitution of this State, providing that no person shall be deprived of life, liberty or property without due process of law. (d) The Fourteenth Amendment to the Constitution of the United States, providing that no person shall be deprived of life, liberty, or property without due process of law. (e) Article 1, section 1, paragraph 2 of the Constitution of this State which provides that "Protection to person and property is a paramount duty of government and shall be impartial and complete." The said action of the defendant, done solely and intentionally as a discrimination against the plaintiff and for the purpose of unlawfully injuring it, denied to the plaintiff the protection afforded by the law of this State known as the "Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors," wherein it is provided that action of municipalities to regulate any business provided for in the said act must, to be within the police power, be pursuant to reasonable rules and regulations. The act of the defendant was further violative of the foregoing section of the Constitution of this State, in that it was not impartial, but was grossly discriminatory against the plaintiff, for the reason that at the time of the said revocation there were four other persons, firms, or corporations holding permits from the defendant to do business as wholesale dealers in the City of Savannah, and their permits were not then revoked and have not since been revoked, and the said licensees were and are located in substantially the same business area in Savannah. (f) That portion of the Fourteenth Amendment to the Constitution of the United States which provides that "No State shall deny any person within its jurisdiction the equal protection of the laws." The said action of the defendant denies to the plaintiff the right provided for all persons by the act in Georgia known as the "Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors," which provides that "Nothing in this act shall be construed as preventing any municipality or county from adopting all reasonable rules and regulations as may fall within the police powers of such municipality or county to regulate any business provided by this act." It further denies to the plaintiff the equal protection of the laws of Georgia, which provide that the police powers of the State and municipalities must be reasonable and be uniformly enforced. The act of the defendant denied the plaintiff the equal protection of the laws within the meaning of the said amendment to the Constitution of the United States, in that the plaintiff was grossly discriminated against by the said action of the defendant. At the time of the revocation, there were four other persons, firms or corporations holding permits from the defendant whose permits were not then revoked and have not since been revoked, the said licensees being in substantially the same business area as the plaintiff. (g) Article 1, section 4, paragraph 1 of the Constitution of Georgia, that "Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing law," in that the charter power of the defendant, if construed as contended by it to mean that it had the power to revoke without notice and cause, would be special legislation contrary to the general law of Georgia known as the "Revenue Act to Legalize and Control Alcoholic Beverages and Liquor," which limits such delegation of police power to municipalities and entitles them to the right to adopt only reasonable rules and regulations with reference to such business; and it would be contrary to and in violation of a general act of the legislature applicable to counties having a population of not less than one hundred thousand inhabitants and not more than two hundred thousand inhabitants, according to the census of 1930, within which class is included Chatham County, and which act is applicable also to municipalities located in such counties and provides that the county commissioners or cities within such counties can revoke licenses only in places where beverages are sold under rules and regulations fixed by such governing authorities, which right shall at all times be reasonably exercised. Under the said act, the defendant could not revoke the plaintiff's license without cause and without a hearing, and its act in doing so was violative of the aforesaid provisions of the Constitution of this State. (h) It was violative of article 1, section 1, paragraph 23 of the Constitution of this State, that "The legislative, judicial, and executive powers shall forever remain separate," in that the defendant in revoking the plaintiff's license attempted to accomplish by legislative fiat what the law requires to be done only in a judicial way and in a judicial capacity, upon cause shown after due notice and opportunity to be heard. The only police power, and in fact the only power and authority of any kind which the defendant possessed or possesses with reference to the revocation of the plaintiff's license were and are embodied in that certain act of the legislature of Georgia, approved February 12, 1938, found in Georgia Laws, Ex. Sess., 1937-38, p. 353, which provides that permits to sell beverages in places of business located in such counties and cities "shall be granted, refused, suspended, or revoked under rules and regulations fixed by such county authorities, and further that the powers therein granted shall at all times be reasonably exercised." The act of the defendant in revoking the plaintiff's license was done under no rules and regulations whatsoever and was arbitrary and unreasonable, and the power which the defendant has was not reasonably exercised but was arbitrarily and unreasonably exercised. In amplification of the allegation that the action of the defendant in revoking the plaintiff's license was violative of article 1, section 1, paragraph 3 of the Constitution of this State, which provides that "no person shall be deprived of life, liberty, or property except by due process of law," the plaintiff shows that it was deprived of its property without due process of law, by reason of the fact that the ordinance revoking the plaintiff's license was without notice and an opportunity to be heard, without the defendant having any reasonable rules or regulations to govern such revocation, and without having any machinery or any rules or regulations to provide for any notice whatsoever to the plaintiff or any hearing whatsoever in its behalf.

The petition was amended by attaching as exhibits a copy of the ordinance of the defendant repealing section 205 of Grayson's Code of the City of Savannah, and copy of the ordinance revoking the plaintiff's license, both of which ordinances were adopted and approved by the defendant in February, 1947. The ordinance first mentioned was as follows: "Be it enacted by The Mayor and Aldermen of the City of Savannah, in council assembled, and it is hereby ordained by the authority aforesaid, that section 58-205 of the 1945 Code of the City of Savannah, constituting section 6 of an ordinance adopted May 27, 1935, is hereby repealed, said Code section applying to the authority of The Mayor and Aldermen of the City of Savannah to revoke licenses for the purpose of selling intoxicating beverages." The other ordinance was as follows: "Be it resolved by The Mayor and Aldermen of the City of Savannah in council assembled that the licenses to sell wholesale liquors in the City of Savannah for the year 1947 heretofore issued to the following named parties are hereby revoked: License No. 31. Approved December 11, 1946. Issued January 2, 1947. Issued to Savannah Distributing Co. Inc., President John A. Peters. Business address: 511 W. Hull St., wholesale liquor. Adopted and approved February 19, 1947." It was alleged that Grayson's Code of the City of Savannah of 1945, which contained the ordinance of The Mayor and Aldermen of the City of Savannah adopted and approved May 27, 1935, and embodied in sections 58-199 and following, including section 58-205, was adopted and approved by the Mayor and Aldermen of the City of Savannah, as the legal Code of the City of Savannah on March 6, 1946, which ordinance of March 6, 1946, reaffirmed and readopted all ordinances of the City of Savannah passed prior to that time, including the said ordinance of May 27, 1935, hereinbefore set out and made a part of the petition and known as sections 58-199 to 58-205, inclusive.

The plaintiff was accorded due process of law as long as section 58-205 remained a part of the ordinances and laws of the City of Savannah, but the repeal of the said ordinance by the defendant, and thereafter the proceeding to revoke the plaintiff's license, as well as the revocation thereof without notice and without cause, deprived the plaintiff of its property and its rights without due process of law within the meaning and intent of the aforesaid sections of the Constitutions of Georgia and of the United States. The act of the defendant in repealing section 58-205 of Grayson's Code necessarily related back to the date of the issuance of the license to the plaintiff on January 2, 1947, and, accordingly, became an ex post facto law, in violation of the due process clause of the Constitution of this State, article 1, section 1, paragraph 3, the clause relating to ex post facto laws and impairing the obligations of contracts, article 1, section 2, paragraph 2, and the clause of the United States Constitution relating to impairing the obligation of contracts, article 1, section 10, paragraph 1. The plaintiff has received official notice from the defendant of the revocation of its license, and if it does not discontinue business, the defendant will undertake to prosecute it in the police court of Savannah or other court for doing business without a license and will continue to prosecute it from day to day. If the plaintiff should endeavor to do business, the defendant, in addition to initiating prosecution against it in the police court of Savannah, will order the marshal of the City of Savannah to close and lock up its place of business and do and perform various and other sundry acts unknown to the plaintiff to stop and interfere with it in the prosecution of its business.

The prayers were for: (a) a temporary restraining order enjoining and restraining the defendant, its servants, agents, officers, and employees from closing the plaintiff's place of business, from prosecuting it in the Police Court of Savannah, and from interfering in any way with the plaintiff's continuance of its business; (b) that a rule nisi be issued; (c) that upon the final hearing the defendant, its servants, agents, officers, and employees be permanently enjoined and restrained as prayed in (a) above and in the petition; (d) process.

The defendant demurred to the petition as amended on the grounds: (1) no cause of action is set forth against the defendant; (2) the petition as amended does not set out any matter or thing of equity or equitable jurisdiction upon which the plaintiff is entitled to any equitable relief.

When the case came on for hearing on the prayer for temporary injunction, counsel for both sides agreed in open court as follows: "This case coming on for hearing on the rule to show cause, both sides agree that the court shall decide the case on the issues raised by the general demurrers. This is to control in this hearing only."

The court overruled the demurrers and granted the temporary injunction, and the defendant excepted. 1. We do not have here a case involving a change in the policy of government in relation to the sale of liquor within a city, as was dealt with in Melton v. Moultrie, 114 Ga. 462 (40 S.E. 302), and Owens v. Rutherford, 200 Ga. 143 (36 S.E.2d 309). There could be no doubt of the legal right of the municipality to change its general policy, although that meant the cancellation of all licenses to sell liquor. Therefore, we approach the instant case unhampered by the above rule on a change of policy and the decisions sustaining the same. InMcKown v. Atlanta, 184 Ga. 221 (190 S.E. 571), and Lee v. State, 184 Ga. 327 (191 S.E. 256), the statute under consideration was the 1935 malt beverage act (Ga. L. 1935, p. 73), and both of those decisions were rendered before the enactment of the law of 1938 to legalize and control alcoholic beverages (Ga. L. 1937-38, Ex. Sess., p. 103). In the former case, it was said, with reference to the power of the City of Atlanta to grant or cancel a permit, that the city could grant or refuse such a permit and could thereafter "revoke the same without notice to the holder." In the latter case, it was said that "The paper issued by municipal or county authorities is a mere permit revocable by them at their pleasure." To both of the quoted expressions this court in Phillips v. Head, 188 Ga. 511 (4 S.E.2d 240), gave approval. Neither of the decisions above cited involved an interpretation of the law here under consideration. This act provides that the sale and manufacture of intoxicating liquor in any county may become legal only after a vote of the people affected thereby, and that if a majority of those voting vote in favor of taxing and controlling intoxicating liquors, "the manufacture, possession, distribution, and sale of such alcoholic beverages and liquors in such county shall be permitted in accordance with the provisions of this act" at the expiration of fifteen days. Section 6 of the act provides that it shall be administered by the State Revenue Commissioner, and section 8 enumerates the powers and duties of the State Revenue Commissioner, among which is the power, (c) "to revoke or cancel for cause after hearing any license issued by him under authority of this act." Section 9 (b) provides for a wholesaler's license and requires that it be renewed annually on or before the first day of January. It is provided in section 9 (c) that "Nothing in this act shall be construed as preventing any municipality or county from adopting all reasonable rules and regulations as may fall within the police powers of such municipalities or counties to regulate any business provided for in this act. All municipal and county authorities issuing licenses shall within their respective jurisdiction have authority to determine the location of any distillery, wholesale business, or retail business licensed by them." It is provided in section 9 (d) that the Revenue Commissioner shall not grant a license until the applicant exhibits a license granted by the municipality or county, and that "the local authority issuing this license shall have full authority to pass on the character, reliability, and other qualities of fitness before issuing such license." The writer, speaking for this court in Highnote v. Jones, 198 Ga. 56 (2) (31 S.E.2d 13), said: "The sale of intoxicating liquors, except as to domestic wines under a permit, is purely a privilege and not a right, and a license for such sale may be revoked by the governing authorities issuing the same without cause or opportunity for a hearing." The quoted language, if applied to beverages and liquor dealt with in the act of 1938 (Ga. L. 1937-38, Ex. Sess., p. 103), would be obiter, since the case there dealt with was considered to be one involving a permit to sell malt beverages under the 1935 act. It was certainly made without taking note of the plain provisions of the present act, expressly requiring notice and a hearing as a condition precedent to revocation by the State Revenue Commissioner. It can not correctly be said by any court that a State license under the act now being considered may be revoked without notice or cause by the authority issuing the same. This particular language in the act would render inapplicable to the present case any decision by this court rendered under a law that did not require a hearing before a revocation of the license.

The policy of the State in dealing with intoxicating liquors was fixed by the State law. Municipalities are bound by that law and can lawfully regulate the liquor business within their corporate limits to the extent that the law specifies. The statute authorizes municipalities to designate the locations of such places of business, provided they must not be within 100 yards of any church or within 200 yards of any school ground; and to fix license fees, provided the minimums shall not be less than the amounts stated in the law; and to consider and pass upon "the character, reliability, and other qualities of fitness beforeissuing such licenses." (Italics ours.) They are also empowered to adopt "all reasonable rules and regulations as may fall within the police powers of such municipalities . . to regulate any business provided for in this act." As pointed out above, the State Revenue Commissioner is not allowed to issue licenses until the applicant has exhibited a license from the municipality or county.

The obvious intent of the law is that the local licensing authorities shall have and exercise wide discretionary power in the approval of all applications for licenses, in order that the good character and reliability of such applicants in the community where they are best known may be found to exist before any license is issued. The State refuses to act until this important functions of the local government has been performed and evidenced by the license issued to such applicant. The lawmakers were undoubtedly acquainted with the inherent evils attending the traffic in intoxicating liquors, and by the provisions of this act sought to afford protection to the public by insuring that until the applicants be thus found to possess good character and reliability they not be permitted to engage in the business. Surely all rules by whatever authority adopted for the regulation and control of the liquor business are intended to serve as instruments for the attainment of this high aim. It would be a rank injustice to those who qualify by meeting this rigid test to allow the authority that had, in the performance of a duty and power conferred by the law, found them to possess these requisites, accepted the required fee, and issued its license for one year, revocable only for cause, as provided by the ordinance, to immediately thereafter, without notice and without cause, arbitrarily revoke the license, thus depriving the licensee of his money, his business, and his lawful means of livelihood. Such arbitrary action can not be sustained as an exercise of the police power. The law expressly limits the exercise of the police power to "reasonable rules and regulations" that may fall within this power. It is neither a "rule" nor a "regulation," nor is it reasonable and within the police power of the municipality of Savannah to revoke without cause the license here involved after it had shortly theretofore accepted the sum of $2000 from the licensee, which it had found possessed the quality of character and reliability requisite to a license. As will be pointed out hereinafter, even the exercise of the police power has its limit. It ends precisely where no reason for its exercise begins. It does not empower government needlessly and without cause, but simply for the purpose of inflicting injury upon an unoffending person, to revoke the license of such person issued by such government to carry on a lawful business. The State government did not retain for itself any such arbitrary power in the administration of this law. On the contrary, it expressly prevented the State Revenue Commissioner from revoking without a hearing and cause a license which the Commissioner had issued and for which the State received a fee. Whatever evils the manufacture and sale of intoxicating liquors may inflict upon the public, the arbitrary revocation of a license, for which the government issuing the same received a fee of $2000 from the applicant, is neither an effective nor a fair method of avoiding such evils. If, after notice and a hearing, the government desiring to cancel a license is unable to find the existence of a cause for such revocation, the licensee must evidently be worthy of continuing in business.

The City of Savannah adopted an ordinance in harmony with the State law, which provided for the issuance of a wholesale liquor license upon the payment of $2000, and that such license should issue for one year, unless sooner revoked because of a violation of the rules and regulations therein set forth. The ordinance also required that before such revocation the licensee should have notice and a hearing. The section providing for notice and a hearing was repealed by the city council at the same meeting at which the license here involved was revoked, and the licensee complains here of the action of the council in repealing that portion of the ordinance. Since the remaining portions of the ordinance provide that the license may be revoked for stated causes, it is unnecessary for us to rule upon whether or not the action of the council in repealing the section providing for notice and a hearing was lawful. Under the ordinance as it stands, after the repeal of the section referred to, the license issued to the defendant in error was good for one year unless revoked for cause. In Purvis v.Ocilla, 149 Ga. 771 (102 S.E. 241), this court had under consideration a city ordinance which provided that for a violation of certain provisions of that ordinance the license issued thereunder would be ipso facto canceled, and it was there said: "Properly construed, such power authorizes the municipality to revoke the license only for cause." The present petition alleges that the licensee had violated no provision of the city ordinance and had violated no law, and that there existed no cause for cancellation, and that the license was canceled by the city arbitrarily and with the intention and purpose of discriminating against the petitioner, since other licenses were not canceled, and that it was done for the purpose of injuring the licensee. It would manifestly be unjust for the city government to obtain the licensee's money under its own ordinance, which provided that the license would be revoked only for cause, and immediately thereafter revoke such license without cause and retain for its own benefit the $2000 which it had received for such license. The injustice of such a transaction is not affected by the fact that it involved the sale of liquor. The standards of justice and fairness are not suspended when a government is dealing with its citizens in a legal manner concerning liquor any more than if the subject dealt with was of the highest and noblest nature. Whether or not liquor should be sold under any circumstances within this State, is no legitimate concern of the judiciary, but rests exclusively within the sound judgment of the legislature. That branch of the government has by this law made such sale under stated conditions lawful. By the action of the legislature both the courts of this State and the municipal governments of the State are inescapably bound.

But the City of Savannah contends that it had a right to thus arbitrarily revoke the license in the exercise of its police power. In 30 Am. Jur. 279, § 42, it is said: "The police power of the State, like other governmental authority, is to be used for the common welfare, impartially and without unjust discrimination; and while, as between the selling of liquor and other callings less harmful to the public, the former may be discriminated against, there is no warrant for unjust discrimination as between individuals engaged in the same business, and this is true especially where the right to sell liquor is recognized by the Constitution." While the sale of liquor is not expressly recognized by the State Constitution, it is so recognized by the State law. Under the principle above stated, there was no warrant for discrimination as between the respective wholesale dealers. In 16 C. J. S. 562, § 195, it is said: "No exercise of the police power can override the demands of natural justice." At page 564 in the same volume, it is said: "The legislature may not exercise the police power for private purposes, nor for the exclusive benefit of particular individuals or classes." Again at page 582, it is said: "The police power, however, may not be resorted to as a cloak for the invasion of personal rights guaranteed by the various constitutions."

The petitioner invokes the equal-protection clause of the Constitution, article 1, section 1, paragraph 2, and contends that this constitutional guaranty was impinged by the discriminatory action of the city council in arbitrarily revoking the petitioner's license while at the same time permitting a number of other wholesale licensees, occupying precisely the same position, to continue in business under the city licenses. The equal-protection clause of the Constitution affords no protection to a mere privilege. Schlesinger v. Atlanta, 161 Ga. 148 (129 S.E. 861). The State law here involved expressly declares that the manufacture, sale, and distribution of spirituous liquors is a privilege and not a right. But, as pointed out above, the same act authorizes the collection of a fee for a license issued thereunder, and provides that the State Revenue Commissioner may not revoke a State license without cause shown upon a hearing. The license here involved was not, as contended by the licensee, a contract between the licensee and the City of Savannah. Sprayberry v. Atlanta, 87 Ga. 120 (13 S.E. 197);Cassidy v. Macon, 133 Ga. 689 (4) (66 S.E. 941); Thacker v. Morris, 196 Ga. 167, 171 (1) (26 S.E.2d 329). But was the license a mere privilege outside the protection of the constitutional provisions invoked? Whether it was a privilege or a right, the licensee bought it from the City of Savannah and paid the sum of $2000 therefor. Although the city had the right to issue the license upon reasonable conditions, the licensee was entitled to retain the license for the full period of time for which it was issued, provided it violated none of the terms and conditions upon which the same was issued. In such circumstances the licensee had something more than a "mere privilege," and was entitled to the equal protection guaranteed by the Constitution. We are confronted with a case where a public law of the City of Savannah lays down the terms and conditions upon which a wholesale liquor license will be issued and revoked. Pursuant to that public law, this licensee, along with a number of others, held a wholesale liquor license, and the city government singled out this petitioner and canceled its license without cause and in violation of the terms of that public law, while at the same time other licensees occupying precisely the same position as this petitioner were allowed to retain their licenses and continue in business. Clearly this petitioner was denied equal treatment with the others similarly situated. Unquestionably partiality as between such licensees was shown and practiced. Such is not the impartial and complete protection to person and property that the Constitution guarantees. The Constitution is offended where a public law is applied differently to different persons under the same or similar circumstances. Baugh v. La Grange, 161 Ga. 80 (130 S.E. 69). In Truax v. Corrigan, 257 U.S. 312, 332 (42 Sup. Ct. 124, 66 L. ed. 254, 27 A.L.R. 375), in construing the equal-protection clause of the United States Constitution, it was said: "The guaranty was aimed at undue favor and individual or class privilege, on the one hand, and at hostile discrimination or the oppression of inequality, on the other. It sought an equality of treatment of all persons, even though all enjoyed the protection of due process." Again, in Hartford Steam Boiler c. Ins. Co. v. Harrison, 301 U.S. 459, 461 (57 Sup. Ct. 838,81 L. ed. 1223), quoting from another United States Supreme Court case, and with reference to the equal-protection guaranty, it was said that "it may be said generally that the equal-protection clause means that the rights of all persons must rest upon the same rule under similar circumstances, Kentucky Railroad Tax Cases, 115 U.S. 321, 337 (6 Sup. Ct. 57, 29 L. ed. 414); Magounv. Illinois Trust Savings Bank, 170 U.S. 283, 293 (18 Sup. Ct. 594, 42 L. ed. 1037), and that it applies to the exercise ofall the powers of the state which can affect the individual orhis property." (Italics ours.) While it may be reasonably questioned as to whether any government of the people ought in any instance to extend governmental privileges or favors to some of the citizens of a class, while denying such to others of the same class, the decisions of the courts require us to recognize that this may be done without offending the Constitution. We do not think, however, that the rule just referred to means that, having accepted money from the individual in consideration of the privilege which is granted upon express terms, the government can constitutionally, shortly thereafter and without cause, arbitrarily revoke the privilege of one, while refusing to revoke the privileges of others occupying precisely the same position. Accordingly, we hold that the action of the city here complained of was an impingement of the licensee's protection guaranteed by the Constitution, and that the court did not err in overruling the general demurrer and in granting an interlocutory injunction against the city authorities as prayed.

Judgment affirmed. All the Justices concur, except Jenkins,C. J., Bell, and Atkinson, JJ., who dissent.

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Dissenting Opinion

The act of the General Assembly (Ga. L. 1937-38, Ex. Sess., p. 103) legalizing and controlling the sale of alcoholic beverages and liquor expressly provides by section 19 thereof as follows: "Nothing in this act contained shall be construed as giving any persons a right to sell spirituous liquors as herein defined, but the manufacture, sale, and distribution of spirituous liquors is declared to be a privilege in this State and not a right." This principle has been the established and expressed policy of this State for more than half a century. It has been stated and reiterated by this court many times. One of the plainest and most incisive statements of this principle may be found in Ison v. Griffin, 98 Ga. 623, 625 (25 S.E. 611), where the court speaking through Justice Lumpkin used this language: "When he accepted his license from the corporate authorities of Griffin, Ison was chargeable with knowledge that it was revocable at any time, irrespective of the question whether or not he did any overt or unlawful act which would of itself afford cause for revocation. This being so, he took it subject to the city's right to revoke it at pleasure; and therefore, when it was revoked, no legal wrong was done him. He had no contractual right as against the city, and therefore it cannot be in any sense liable to him as for a breach of contract." To the same effect see Sprayberry v. Atlanta, 87 Ga. 120 (2) (13 S.E. 197); Plumb v. Christie, 103 Ga. 686 (30 S.E. 759, 42 L.R.A. 181). To declare now that the permit granted to a dealer in alcoholic beverages can not be revoked at pleasure and without cause being shown or a hearing had, with the necessary incidental right to certiorari to the courts, would result in completely overruling the policy of the law which has long been recognized and stated in unquestioned terms. Whether or not the ordinance which was in force in the City of Savannah at the time the permit in the instant case was granted, and which provides for a hearing before a license could be withdrawn, could have operated, even if such provision had not been repealed prior to the withdrawal of the license, to limit a free exercise of the city's power and authority as declared by the statute and by the decisions of this court, is immaterial, since the plaintiff licensee took its license with full knowledge that the city had the power to amend or repeal such ordinance at any time, and it is therefore in no better position than if the original ordinance had never contained the provision for hearing. Code, § 69-202. That the Department of Revenue looks primarily to the municipality to safeguard the good order and peace of the local communities, is indicated by the fact that it is not permissible for it to grant permits at all until the local authorities have first themselves exercised their authority, and the restrictions upon the State Revenue Department not to withdraw its own license without first having a hearing have no relation whatever upon the operation of the police powers of a local municipality. Nor does the fact, that the State law provides that "Nothing in this chapter shall be construed as preventing any municipality or county from adopting all reasonable rules and regulations as may fall within the police powers of such municipalities or counties to regulate any business provided for in this chapter," operate to authorize the adoption of any rule which would contravene the established State law as long interpreted by this court. Moreover, it should be seen at once that this provision of the law pertains primarily to the regulation of businesses and has no connection with and bears not at all upon the right of revocation. Under this statute, despite the fact that the State taxing authority had issued its license, the police authorities had the right to regulate the business, such as for example to regulate what hours the business could remain open and other questions relating to the peace and good order of the community.

(a) This court has held at least twice that the equal-protection clauses of the State and Federal Constitutions protect rights alone, and have no reference to mere concessions or privileges, which may be bestowed or withheld by the State or municipality at will, Schlesinger v. Atlanta, 161 Ga. 148 (2 b) (129 S.E. 861); McKown v. Atlanta, 184 Ga. 221, 222 (3, 4) (190 S.E. 571).

(b) Since the city authorities had the legal right and power to revoke the license of the plaintiff, as they did, the plaintiff could not invalidate such revocation as to it by showing that the licenses of other dealers in similar situation were not also revoked.

The foregoing deals with the more important contentions of the plaintiff. We have also examined its remaining contentions and consider them without merit.