Mrs. Lola Hornsby v. Ivan Allen, Mayor of the City of Atlanta

TUTTLE, Before Judge, JONES, Chief Judge, JOHNSON, and District Judge. TUTTLE, Judge: Chief Appellant Mrs. is an unsuc- applicant cessful operate for a license to liquor a retail Georgia. Atlanta, store in brings She this action under 28 U.S.C. 13431 to § redress an deprivation rights of civil and under 28 U.S.C. 2201 to obtain rights. a declaration of her The Mayor, Clerk, and the Aldermen of Atlanta are defendants. In her com- plaint, Hornsby alleges that al- though she all requirements met qualifications, as to moral character of the proposed location store, prescribed for the holder of a re- tail license, applica- dealer’s her tion was denied “without a reason there- by Mayor for” Board Aider- men. This action is as “ar- characterized bitrary, unreasonable, unjust, capricious, discriminatory” and in contravention equal protection due clauses of the 14th Amendment. The complaint charges system also that a courtesy ward was followed in issu- liquor licenses; system ance under this allegedly granted only licenses would be upon approval of one or both of of the ward in aldermen which the store was to be located. This too is said to violation 14th Amend- constitute ment.

§1. authorized any person: original color of ^[*] “(3) H« * To redress the jurisdiction “The State law^o ' law, be commenced statute, ordinance, deprivation, courts any civil action shall have privilege any Constitution regulation, rights Act of of citizens custom or Congress immunity the United States or or of all of the United States.” usage, providing for secured persons any by right, with- equal by pro process in administrative it. ceedings Due motion to dismiss The defendants’ judicial ground has been of a nature granted by the court below (cid:127) conformity generally fair polit- only said complaint concerned Anglo-Saxon by practices jurisprudence, question not covered ical which was Manney, see Tadano process provisions of the the due 14th usually equated solely dealing mo- which is Amendment, with since hearing, voting upon adequate and fair legislative body notice a Administrator, tives of a legislation, Opp Cotton Mills into v. 524, not draw did clause, L.Ed. since 312 U.S. question the Although (1941). adherence allegation strict no of discrimina- there was issu- the common-law rules hearing evidence tion. court indicated v. required, the is not see Crowell liquor within ance of a license 285, Benson, 48, 22, of Mayor 285 U.S. 52 S.Ct. the Board of discretion the gen parties (1932), federal L.Ed. 598 must a the that and concluded Aldermen erally opportunity an be to know allowed an to entertain court had no Morgan opposing party, the process. claims of the on attack 773, States, 1, United v. 304 U.S. 58 S.Ct. outset, dis note our At the we present (1938), 82 L.Ed. 1129 to evidence agreement classi with the district court’s support contentions, to their see id. 304 challenged pure fication of the ly actions as 1129, 18, 776, U.S. at at 82 L.Ed. legislative body; those a do not of we the and to witnesses for cross-examine application for conceive the denial of an 269, side, Reilly Pinkus, other v. 338 U.S. legislation. to an act of Al a license though be 110, (1949). 94 L.Ed. 63 Thus 70 S.Ct. disagreement mat is on the there proper parte it is admit ex evi ter, see Public G.J.S. Administrative given dence, not under oath witnesses 398, Procedure, Bodies and subject and not to cross-examination licensing proper is ¡prefer the view that opposing party. the Southern Stevedor , adjudicative a process. when Thus an ing (5th Voris, Cir. Co. v. 190 F.2d 275 body governmental municipal or other 1951); Quong Chin see Chin ex rel. Mew adjudication grants is an a license it Keung Tillinghast, Bark 30 F.2d 684 satisfactorily complied applicant has the (1st 1929). fortiori, the decid A the prescribed standards with the ing may authority its not base decision Similarly the de of that license. award specifi on evidence which has not been adjudi nial of a license based brought cally it, applicant before United satis States cation that the has not requirements. qualifications Ry., fied Abilene & those So. U.S. 44 S.Ct. hand, prescription the of findings On the other (1924); 68 L.Ed. 1016 the which must met to obtain .standards be conform to the evidence adduced at legislation, stand a since these license hearing, Manney, Tadano the guides future ards authoritative are 1947). Furthermore, the from an assessment conduct derived Supreme Court has said that an adminis community. govern A the needs the upheld merely order “cannot be trative agency lieens mental entrusted with the findings might have because been made (ing legis power a therefore functions as considerations disclosed which would prescribes standards, it when these * * lature j justify its order *. There must agency judicial acts a the same but I responsible finding.” a such SEC v. body when it makes determination that I Chenery Corp., 318 U.S. 63 S.Ct. n specific applicant has or not satis- .a (1943). L.Ed. 626 Thus the where ' them. fied Secretary pass of State indicated that .precluded regulations licensing port the Since consists issuance >v passport question, of factual issues and determination specify applicable legal did not criteria them—a sub ^.application findings require or out fundamental on which act—the section judicial based, applicable conclusion was it was are held of due ments required findings *301, (1906). To the con- 50 L.Ed. would that factual ap- Georgia deny trary, has limited Secretary the State of could before U.S.App. municipalities Dulles, of their plication. the exercise Boudin v. authority (1956). to those over businesses 235 F.2d 532 D.C. regulations which reasonable rules and Also, Supreme has held police powers. fall within their grant arbitrary license refusal to groups group permit other or to one when Next, do not states we note that cir permits under similar have obtained escape operation of the 14th Amend denial constitutes a cumstances dealing intoxicating bever ment law. Niemotko ages by Amendment. reason of the 21st 325, 95 Maryland, 268, 71 S.Ct. 2 of deals with Section that Amendment holding). (alternative (1951) L.Ed. 267 liq transportation importation of Although problem case raised the territory. Thus, al uors into a state or though religion, action state freedom of hence, may, a state under the 21st necessarily, 14th Amendment against Amendment, im discriminate concluded that The Court were involved. ports intoxicating beverages, see State n arbitrary diserimin “completely Equalizatio Board California v. a grant” park permits tory refusal Young’s Co., Mkt. 299 U.S. sought by consti Witnesses Jehovah’s (1936), L.Ed. the 81 38 Amendment protection of the equal a denial of tuted powers, does not confer see other organizations religious other law where Brewing Corp., Sancho v. Corona customarily use the allowed to had park. been Twenty- (1st 1937). 479 “[T]he First the Amendment did not clothe right liquor to sale of State’s control the appellees here, however, The any higher degree than it had over place liquor special category, seek to in a the sale of other commodities within the argue Georgia and since has de Jatros, F.Supp. Brown v. State.” spirituous liquor clared a to license sell (E.D.Mich.1944). licensing authority privilege, to abe the grant Neither is the assertion that has an discretion to unreviewable may liquor public a deny firmly established, be to health menace or licenses. isIt right a course, and welfare sufficient answer to Mrs. the that the state has allegations. Hornsby’s potential regulate prohibit The or to traffic intoxi undesirability may product social cating of the liquor in its the valid exercise of absolutely prohibiting it, or, Beverage warrant police power, see Midwest Co. the Board has Gates, F.Supp. 688, (N.D.Ind. Aldermanic done to some imposing here, pro something extent restrictions to quite this is dif community in right arbitrarily tect the from its harmful ferent a from to act dangers justify calling capriciously. Merely fluences. But the do not liquor depriving liquor, privilege those who deal in license a nicipal does not free the mu customary it, seek to deal in con authorities from the due safeguards. great Indeed, licensing stitutional the requirements in and allow them liquor industry social interest an to exercise uncontrolled discretion. strong exceptionally suggestion Georgia makes an case for There is no here that proper procedures sought to ac adherence to declare the sale retail judicial licensing public cess to review liquor to be a business which can possibility liquor. retail sale of The franchised state treated as high profits public use, on one hand and the as the devoted State of governmental danger ginning, of strict limitations did with cotton see Oklahoma Corporation Commission, hand create a fertile on the other breed Frost v. ground temptations ing graft, for the 73 L.Ed. U.S. govern corruption, and other abuses of (1929), and the of Utah did with State Strickley Highland Boy mining, for a mental office. If one Mining Co., preferred equally another over license is Gold process requires, she since could due political as the favor or qualified aas opposing her arrangement, discover claims of those of a clandestine

result subject their to cross-exam- injured, but evidence disappointed applicant addition, greater. ination. In public injury is much to the know, opportunity not through right afforded an expect its to public has the regulations promul- reasonable prescribed standards observe officers to gated by board, objective basis adjudications on the and to make met step standards which had to to obtain insur- first toward merit. The Next, ing license. failure realized expectations are that these denying basis board reveal the require standards is to adherence application true, would, her if abe denial uncon- process; absolute due of her the board make find- have See invites abuse. trolled discretion ings based on the evidence Fitzpatrick, adduced 129 Conn. 505; Francis v. hearing. Moreover, appellees themselves A.L.R. Glicker 30 A.2d Michigan Commission, pro- indicate mandates of that the Liquor Control 1947). tection not observed award- were 160 F.2d 96 ing liquor granting licenses: “[I]n point dis- have case The closest privilege, appellant mere ity cites no author- Michigan Liquor is Commission, supra. covered Glicker' prevent would the defendants There Control arbitrarily [appellees] accepting from brought Civil action was eligible application denying one while Rights requiring the an order Act for others; they would, otherwise of neces- li- commission renew a state grant sity, every be forced to licenses to allegedly been revoked had cense which eligible upon application.” citizen Brief discrimi- as an and deliberate intentional Appellees,p. many 7. If there are too by political considera- motivated nation qualified applicants, proper then the rem- dismissed The trial court tions. edy adopt is for the Board of Aldermen to complaint of a cause for failure state regulations rules and reasonable Appeals action, of for the but the eligibility of will the standards raise holding reversed, a Sixth Circuit of fix limits on the number may licenses which stated under valid claim was area; in an be issued the solution pro- and the substantive clause arbitrary among not to make selections Rights Act, 42 U.S. of Civil visions qualified. those no 1983. We see valid distinc- C.A. § license, of tion the revocation a between showing Merely a violation of Glicker, appli- the denial of an as right is, however, a constitutional not appli- cation, at hand. An as the case gain access to sufficient to the federal has the cant for a license Hornsby courts; since Mrs. has not prior, in the same as treated manner sought to invoke under the applicants are. See Niemotko successful provision, question 28 federal U.S.C.A. supra. Compare Maryland, Ashbacker v. 1331, determine whether she § Corp. v. Federal Communications Radio Commission, an actionable claim under 327, 148, 326 U.S. 66 S.Ct. Rights Act, the Civil Revised Stats. § (1945). 90 L.Ed. 108 1983, 1979, ju 42 within U.S.C.A. § court, find in of the We case risdiction 28 U.S. Hornsby's coverage allegations, 1343(3). The Mrs. if borne C.A. of the out long Rights evidence, Act has been the are sufficient to show a Civil sub controversy. rights. ject of her 14th of Courts have violation Amendment heated actually they application to allow what reluctant con her was denied been If delegation simple actions for state false im from sider her ward because battery knowledge decided, prisonment and assault their own to be from of brought circumstances, that in the federal courts as civil rights Pape, Monroe license, v. a See not be issued then actions. 365 should 68, 473, hearing 167, deprived 240 n. 81 S.Ct. L.Ed. 5 she was of which U.S.

611 cert, (5th Frankfurter, Cir.), F.2d (opinion denied, 693 (1961) of 340 U.S. 2d 492 J.). 823, 56, very 71 they (1950) strict S.Ct. Also, 95 L.Ed. have been 604 (judgment complaint forth requiring merits); a defendants on facts rights damages and for protected showing to one barred from Las of the a-denial Vegas unsupport “factually merely casinos as an not undesirable charac- ter, complained Sawyer, Marshall v. 301 F.2d ed characterizations 639 malicious, (9th 1962). defendants, Supreme Cir. Court, of acts of conspiratorial, purpose Pape, Monroe v. 167, for the done 365 U.S. 81 S.Ct. 473, gave 5 plaintiffs (1961), their constitu L.Ed.2d depriving of 492 Todd, approval rights.” 198 ultimate seal v. McGuire See tional construc- cert, denied, Cir.), U.S. tion allegation section (5th requiring 344 60 1983 not F.2d (1952). purpose 835, 44, 649 L.Ed. 97 S.Ct. discriminate. 73 Norris, limita Furthermore, See Cohen v. 24, at one time various 300 F.2d 29-30 specific (9th 1962) propounded (overruling Agnew Cir. were tions rights v. City Compton, protected supra, the statutes —see cases). and other Compton, Pape F.2d Agnew City upheld Monroe complaint 239 v. alleg- v. cert, denied, ing damages 1956), illegal 226, (9th from an 231 search and 868, 959, L.Ed.2d 1 seizure under color 77 S.Ct. U.S. state and 353 munici- apparently pal statutes, (due usages (1957) customs and 910 but not allegations any specific discrim protected absent Accord, Egan intent. Ortega persons); Ra Aurora, 514, ination between gen, 365 U.S. 81 S.Ct. cert, 1954), 684, (7th Cir. (1961). F.2d L.Ed.2d is, It there- 786, 940, fore, recognized denied, now specific that no in- (no deprive allowed (1955) action tent plaintiff L.Ed. 1268 of his civil rights equal protection) de alleged, need Stringer denial see —on required gree Dilger, Screws action of state —see States, 325 U.S. United that an pur- intentional and (dis (1945) poseful L.Ed. 1495 discrimination necessary only rights senting (civil opinion) statutes under the act’s sections, criminal of state inapplicable Pape, supra, act violation Monroe v. where 365 U.S. at types law) of discrimination on the S.Ct. at 5 L.Ed.2d or under —and Hughes, conspiracy 321 the provisions, covered—see Snowden see Lewis v. (1944) Brautigam, supra, L.Ed. 497 64 88 227 F.2d at 127-28. purposeful (intentional discrimination or Moreover, the case Carr, of Baker v. case); equal De required in 369 U.S. 7 L.Ed.2d 663 (5th Rogers, Cir. F.2d 928 268 loach v. (1962), may have require- relaxed the (only on class 1959) based discrimination ments in Hughes, announced Snowden v. actionable). supra, equal protection race for or cases. Juris- in Carr, diction Baker v. part rested in cases, however, trend of the recent The 1343(3), on section and the ex- accept to and more has been more actions pressly upheld jurisdiction. gist But the rights the civil Thus under statutes. complaint merely of the was a denial of damages allowed for have been suits intimidating protection through equal gradual shifts prisoner interfering and population, although in alleged it was counsel, his to with Brautigam, Lewis v. original apportionment the that arbitrary was F.2d 55 A.L.R.2d capricious. and Hence it is damages (5th 1955); for Cir. result- allegation at least that an doubtful of an illegal ing an search and from seizure and purposeful intentional and discrimination brutality, police Moynahan, Geach v. necessary rights juris- to sustain is civil (7th Tur- F.2d 714 Davis v. diction, even where founded on a denial ner, 1952) ; F.2d equal protection. of against injunction an enforcement of Judging Hornsby’s regulating operation complaint the ordinances Mrs. light taxicabs, requirements Atlanta, Walton of the the that it liq- process provided cedural due in the denied plaintiff has been (1) that forth immunity, licensing uor right, privilege store field. or protected color under (2) acted defendants and judgment The is reversed. Stringer law, local of a state Dilger, supra, 540, Marshall at F.2d Judge JONES, (dissenting): find supra, Sawyer, opinion am some of With Court’s I the claim actionable an set forth she has disagreement. of the Court’s Some district of the within opinion do not I understand. already concluded have court. We opinion, it, The Court’s de- I read alleged of her 14th Hornsby denial Mrs. give cides that the refusal to by liquor Mrs. Horns- rights. was done That Amendment legislative, license is not plain law is too of state the color under adjudicative judicial. and therefore discussion. extended to merit These statements are to essential liquor license denied a was may misleading decision and acting Aldermen, under the Board consideration of some future case. 58- Ann. authority Code §§ the Ga. ap- fitness pass on the 58-103 necessity extending no I see federal Moreover, issue licenses. plicants and rights jurisdiction civil the review functioning as Aldermen, Board state administrative decisions where it Code Ga. agency of the state irreparable is injury asserted that adopt right to 58-1028, had Ann. § arbitrary from resulted action of a state liquor busi- regulations for rules and agency administrative of due violation location nesses, determine and to process declaratory injunctive stores. sought. retail relief is In such cases federal jurisdiction seems to be established with- proper question to be The rights controversy. out vis, civil 3 Da- hearing upon of this case determined Law Administrative Treatise et not whether the district court is in the seq. 23.05. law plaintiff is entitled under the below court, The Court directs the determination The license. finding granted upon allegations is one should she whether complaint true, “enjoin are denial the Aldermanic Board. function of prevailing system of licenses under ascertain whether courts role of the legal and until a determination standard is in which this established manner procedural process provided.” due accords with constitution or is made action, not a This is class of due if the al standards going opinion prescribe remedy are of the that Court protection. We might grant, complaint facts to that the district court shall sufficient just appellant’s appli it denial of not well to confine the relief show that the appellant only these seems a license did meet who for be the cation person complaining? and, done under color now since standards statute, a violation constituted of state why clear is not to me It does Court 1983. 42 U.S.C. § court, not direct if it must give directions, enjoin the trial follows court must the issuance It suit licenses until and determine or renewal entertain standards are allegations. procedures provided. develops If it established truth of would, think, This sort of directive so I no ascertainable standards have by than one the Board which established better been Aider- adopted. The order can men intelli- directed will, open license, fear, gently qualify then Court I door seek enjoin applications licenses, the denial of licens- flood none the court system appellees, prevailing decision, under the and until which es deny. legal permitted pro- established and will be standard

Case Details

Case Name: Mrs. Lola Hornsby v. Ivan Allen, Mayor of the City of Atlanta

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jan 7, 1964

Citation: 326 F.2d 605

Docket Number: 20656

Court Abbreviation: 5th Cir.