Staub v. City of Baxley, 36161

• Decision Date: 12 April 1956
• Docket Number: No. 36161,No. 2,36161,2
• Citation: 94 Ga.App. 18,93 S.E.2d 375
• Parties: Rose STAUB v. CITY OF BAXLEY
• Court: Georgia Court of Appeals

Page 375

93 S.E.2d 375

94 Ga.App. 18

Rose STAUB v. CITY OF BAXLEY.

No. 36161.

Court of Appeals of Georgia, Division No. 2.

April 12, 1956.

Rehearing Denied May 15, 1956.

Syllabus by the Court.

The trial court did not err in overruling the writ of certiorari.

Rose Staub (hereinafter called the defendant) was arrested for violation of an ordinance of the City of Baxley. Following the arrest of the defendant, she filed a petition for injunction in the Superior Court of Appling County, seeking to have the City of Baxley enjoined from proceeding with the prosecution, and seeking a declaratory judgment adjudging the ordinance void. The superior court refused to grant such relief. This judgment was affirmed by the Supreme Court with one Justice dissenting. See Staub v. Mayor, etc., of Baxley, 211 Ga. 1, 83 S.E.2d 606. The City of Baxley then proceeded with the prosecution, which resulted in conviction of the defendant in the Mayor's Court of the City of Baxley for violation of an ordinance of the City of Baxley. We will hereinafter refer to the City of Baxley as the plaintiff. The ordinance prohibited the solicitation of members for an organization without a permit and license. The defendant applied for and was granted a writ of certiorari, to which the mayor filed his answer. The defendant (plaintiff in certiorari), within the statutory time, filed her exceptions and traverse to said answer to the writ of certiorari. Counsel for both parties stipulated that all issues of fact and law should be submitted to and decided by the judge of the superior court, without the intervention of a jury.

After the evidence had been submitted and argument had, the judge overruled such exceptions and traverse of the defendant (plaintiff in certiorari) to the answer of the judge to the writ of certiorari, and sustained the answer to the writ of certiorair and dismissed the petition. The question presented to the Court of Appeals was whether or not a certiorari bond was properly signed. This court reversed the judgment of the trial court of this point, holding that the certiorari bond was properly signed, and the case was returned to the trial court to be tried on its merits. See Staub v. City of Baxley, 91 Ga.App. 650, 86 S.E.2d 712. The case was so tried. The defendant again applied for the writ of certiorari, which was granted.

The judge of the Superior Court of Appling County overruled the writ of certiorari and sustained the judgment of the Mayor's Court of the City of Baxley, thus convicting the defendant (plaintiff in certiorari) of a violation of the ordinance of the City of Baxley prohibiting the solicitation of members for an organization without a permit and license. It is to this judgment that error is assigned here.

For clarity we will quote the ordinance in its entirety: 'Section I. Before any person or persons, firms or organizations shall solicit membership for any organization, union or society of any sort which requires from its members the payment of membership fees, dues or is entitled to make assessment against its members, such person or persons shall make application in writing to Mayor and Council of the City of Baxley for the issuance of a permit to solicit members in such organization from among the citizens of Baxley.

'Section II. Such application shall give the name and nature of the organization for which applicant desires to solicit members, whether such organization is incorporated or unincorporated, the location of its principal office and place of business and the names of its officers, along with date of its organization, and its assets and liabilities. Such application shall further contain the age and residence of applicant including places of residence of applicant for past ten years; and as well as business or profession in which such applicant has been engaged during said time, and shall furnish at least three persons as references to applicant's character. Said application shall also furnish the information as to whether applicant is a salaried employee of the organization for which he is soliciting members, and what compensation, if any, he receives for obtaining members.

'Section III. This application shall be submitted to a regular meeting of Mayor and Council of City of Baxley, and in event it is desired by Mayor and Council to investigate further the information given in the application, or in the event the applicant desires a formal hearing on such application, such hearing shall be set for a time not later than the next regular meeting of the Mayor and Council of City of Baxley. At such hearing the applicant may submit for consideration any evidence that he may desire bearing on the application, and any interested person shall have the right of appearing and giving evidence to the contrary.

'Section IV. In passing upon such application the Mayor and Council shall consider the character of the applicant, the nature of the business of the organization for which members are desired to be solicited, and its effects upon the general welfare of citizens of the City of Baxley.

'Section V. The granting or refusing to grant such application for a permit shall be determined by vote of Mayor and Council, after consideration and hearing if same is requested by applicant or Mayor and Council, in the same manner as other matters are so granted or denied by the vote of the Mayor and Council.

'Section VI. In the event that person making application is salaried employee or officer of the organization for which he desires to seek members among the citizens of Baxley, or persons employed in the City of Baxley, or received a fee of any sort from the obtaining of such members, he shall be issued a permit and license for soliciting such members upon the payment of $2000.00 per year. Also $500.00 for each member obtained.

'Section VII. Any person, persons, firm, or corporation soliciting members for any organization from among the citizens of persons employed in the City of Baxley without first obtaining a permit and license therefor shall be punished as provided by Section 85 of Crominal Code of City of Baxley.

'Section VIII. All ordinances of City of Baxley inconflict with ordinance are hereby repealed.

'Section IX. Should nay section or portion of this ordinance be held void, it shall not affect the remaining sections and portions of same.

'Duly adopted by Mayor and Council of Section 85 of Criminal Code of City of on the 17th day of September, 1949.

/s/ C. A. Whitaker, Mayor.

/s/ J. H. Keels, Clerk.'

The writ of certiorari sets out that the said ordinance is repugnant to and violative of the First Amendment and Fourteenth Amendment to the Constitution of the United States; that such ordinance of repugnant to and violative to paragraph 8 of the National Labor Relations Act, 29 U.S.C.A. § 158, and tends to contravene said act and the public policy of the United States as contained in said act by establishing unwarranted conditions upon the right of the defendant to participate in the labor activities secured by the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., and the public policy of the United States; that the ordinance was founded upon the unreasonable and invalid classification of persons who must pay the confiscatory fee set out in the ordinance; that said ordinance makes the payment of the fee conditioned upon the mere fact that a person receives remuneration for his efforts in soliciting membership in an organization; that said ordinance is invalid, in that it shows on its facr that it is a regulatory measure imposing an excessive...