Shaver v. Martin

• Citation: 143 S.E. 402,166 Ga. 424
• Decision Date: 17 May 1928
• Docket Number: 6451.
• Parties: SHAVER, City Clerk v. MARTIN.
• Court: Supreme Court of Georgia

143 S.E. 402

166 Ga. 424

SHAVER, City Clerk v. MARTIN.

No. 6451.

Supreme Court of Georgia

May 17, 1928

Syllabus by the Court.

The operation of a pool or billiard room for public entertainment is a business which, from its very nature, comes within the police power of the state. Such power may be exercised directly by the state or indirectly through the medium of the subordinate public corporations of the state.

Under the general welfare clause of the charter of the city of Moultrie, the ordinance prohibiting public billiard and pool rooms was valid, and not unconstitutional for any reason assigned.

It follows that the court erred in granting a mandamus absolute requiring the municipality to issue a license to the applicant authorizing the operation of such billiard and pool room.

Error from Superior Court, Colquitt County; W. E. Thomas, Judge.

Application for mandamus by W. J. Martin against G. A. Shaver, Clerk of the City of Moultrie. Judgment for plaintiff, and defendant brings error. Reversed.

Hoyt H Whelchel, of Moultrie, for plaintiff in error.

Jas. L Dowling, of Moultrie, for defendant in error.

GILBERT J.

This was an application for mandamus to require the city of Moultrie to issue a license to the applicant for operation of a billiard and pool room. The defendant answered, setting up an ordinance of the city prohibiting operation of billiard and pool rooms. The applicant insisted said ordinance was void, because unconstitutional, in that it violated the due process clause of the state Constitution. Civil Code of 1910 § 6359. The court granted a mandamus absolute, and the defendant excepted.

"Whenever the General Assembly has by direct enactment, or by its settled public policy derivable from the various statutes passed from time to time, brought within the police power of the state any particular subject, then the municipal authorities of a town or city would seem to have the power, under the usual general welfare clause in municipal charters, to deal with such subject by proper ordinance, limited only by the established rule that they cannot deal with an act which is declared to be a violation of the criminal laws of the State. See in this connection 1 Dill. Mun. Cor. § 329." Henderson v. Heyward, 109 Ga. 373, 379, 34 S.E. 590, 592, 47 L.R.A. 366, 77 Am.St.Rep. 384.

See, also, Wright v. Macon, 5 Ga.App. 750, 760, 64 S.E. 807, and cit.

In the Henderson Case, supra, it was said:

"The police power of a state may be exercised by the General Assembly directly, or indirectly through the medium of the subordinate public corporations of the state."

This decision digests previous ones by this court upon the question. There is neither a general law nor any provision in the charter of the city of Moultrie expressly delegating to that municipality the right to wholly prohibit the carrying on or conducting of the business of a public billiard or pool room. The general welfare clause of the charter provides as follows:

"That the mayor and aldermen aforesaid shall have power to pass all such ordinances and regulations for the complete government of the city aforesaid as shall be deemed necessary and proper, and for the suppression of disorderly conduct, the protection of life, liberty, and property; the maintenance of the public peace and the protection of public health, which are not repugnant to the constitution and laws of this state, or of the United States, as they may see proper to do; and to prescribe and enforce penalties for the violation of the same." Ga. Laws 1895, p. 261, § 14.

In 1925 the General Assembly passed an act providing for the regulation and taxing of billiard and pool rooms in this state. In section 17 of that act it was provided that:

"This act shall not be construed as authorizing the issuance of billiard room license by city officials or tax collectors for the operation of public billiard rooms in any city or town in this State where the operation of a public billiard room is now prohibited by local ordinance." Ga. Laws 1925, pp. 286, 291.

This is a clear recognition by the General Assembly of the power to prohibit by municipalities, without an express delegation. The petition for mandamus in this case was filed in 1928, subsequently, therefore, to the passage of the above-quoted act. The city of Moultrie had enacted, and there was in existence, an ordinance wholly prohibiting the business of public billiard or pool rooms, and it is to be inferred that under the ordinance in force at the time this suit was filed there was no provision for issuing licenses to billiard, and pool rooms or for any license fee therefor. It has been well settled in this state that:

"The operation of a pool or billiard room for public entertainment is a business which, from its very nature, admits of strict regulation under the police power." Beaty v. Richardson, 164 Ga. 185, 138 S.E. 54, and cit.

The state has enacted a number of penal statutes intended to safeguard the public from influences naturally tending to surround public billiard and pool rooms. It is unlawful to permit minors to play or to "remain in" such rooms, or to make false certificate as to age. Penal Code 1910, § 406. The act of 1925 also made it penal to violate other designated sections of the act. The penal provision of the act is codified in 13 Park's Code Supp. 1926, §§ 702(ee), 702(ff), and in Michie's Penal Code, § 406(2); and the sections which it is penal to violate are codified in 12 Park's Code Supp. 1926, § 1770(yy) et seq., and in Michie's Civil Code, § 1762(20-35).

The act enumerates sundry prohibitions. It would seem from a reading of the statutes that the General Assembly deemed the strictest regulations necessary, and so exercised its police power. As seen above, good care was exercised in the statute not to interfere with municipalities which desired to prohibit such institutions entirely. This court has repeatedly upheld ordinances based upon "general welfare clauses," where keeping intoxicating liquors on hand for sale was the evil attacked, and where the state had not occupied that field of legislation. Some of those decisions are: Paulk v. Sycamore, 104 Ga. 728, 31 S.E. 200; Brown v. Social Circle, 105 Ga. 834, 32 S.E. 141; Cunningham v. Griffin, 107 Ga. 690, 33 S.E. 664; Rooney v. Augusta, 117 Ga. 709, 45 S.E. 72; Reese v. Newnan, 120 Ga. 198, 47 S.E. 560; Robinson v. Americus, 121 Ga. 180, 48 S.E. 924; Tucker v. Moultrie, 122 Ga. 160, 50 S.E. 61. It follows that the city of Moultrie acted within the laws and Constitution of this state in prohibiting by ordinance the operation of public billiard and pool rooms.

The validity of such an act as affected by the due process clause of the Federal Constitution was decided in Murphy v. California, 225 U.S. 623, 32 S.Ct. 697, 56 L.Ed. 1229, 41 L.R.A. (N. S.) 153. The opinion in that case was written by that beloved Georgian and scholar, Mr. Justice Joseph Rucker Lamar. The city of South Pasadena, Cal., in pursuance of police power conferred under the Constitution of that state, passed an ordinance prohibiting any person from keeping or maintaining any billiard or pool room establishments for hire and public use. The constitutional provision applicable is as follows:

"Any county, city, town, or township may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws." Article 11, § 11, Constitution of California.

In the opinion of the Supreme Court it was said:

"The Fourteenth Amendment protects the citizen in his right to engage in any lawful business, but it does not prevent legislation intended to regulate useful occupations which, because of their nature or location, may prove injurious or offensive to the public. Neither does it prevent a municipality from prohibiting any business which is inherently vicious and harmful. But, between the useful business which may be regulated and the vicious business which can be prohibited lie many nonuseful occupations which may or may not be harmful to the public, according to local conditions, or the manner in which they are conducted. Playing at billiards is a lawful amusement; and keeping a billiard hall is not, as held by the Supreme Court of California on plaintiff's application for habeas corpus a nuisance per se. But it may become such; and the regulation or prohibition need not be postponed until the evil has become flagrant. That the keeping of a

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