Beard v. City of Atlanta, 35422
| Decision Date | 26 January 1955 |
| Docket Number | No. 35422,No. 2,35422,2 |
| Citation | 86 S.E.2d 672,91 Ga.App. 584 |
| Parties | F. R. BEARD v. CITY OF ATLANTA |
| Court | Georgia Court of Appeals |
Syllabus by the Court
The superior court erred in refusing the application for a writ of certiorari, for the reasons given in the body of the opinion.
We shall name the parties throughout the opinion as they appeared in the trial court as follows: City of Atlanta will be called the plaintiff, and F. R. Beard will be called the defendant. The defendant was convicted in the Recorder's Court of the City of Atlanta for violating section 7.3 of the general ordinances of the City of Atlanta (1953), regarding the licensing of barbers. The defendant, being dissatisfied with the conviction, made application for a writ of certiorari. The Judge of the Superior Court of Fulton County granted the writ. Upon the hearing before a judge of the superior court, the following order was passed:
The defendant, being dissatisfied with the judgment of the superior court in dismissing the writ of certiorari, filed exceptions thereto and carried the application of illegality of the judgment of the superior court by direct bill of exceptions to the Superme Court. Upon hearing, the Supreme Court transferred the case to the Court of Appeals. See Beard v. City of Atlanta, 211 Ga. 25, 83 S.E.2d 594, 595, decided September 13, 1954. By reference to the opinion of the Supreme Court it will be found that the court, among other things, said:
'The exception here is to the refusal of the trial judge in the superior court to sanction and allow a petition for certiorari, in a case which was tried in the Municipal Court of Atlanta, wherein an attack was made upon the constitutionality of an ordinance of the City of Atlanta designated as Chapter 7 Barbers, Sections 7.1 through 7.38, of the 1953 Code of the City of Atlanta, Held:
'1. Bunn v. City of Atlanta, 192 Ga. 682, 16 S.E.2d 539.'
The evidence is quite lengthy. Several pages of the city ordinance are set forth. There is no dispute by attorneys for both parties that the defendant was operating a barber shop within the City of Atlanta without having complied with the ordinance of the City of Atlanta regarding the operation of such barber shop.
The defendant contends that the requirements of the ordinance are unconstitutional. The plaintiff contends otherwise.
F. L. Breen, Atlanta, for plaintiff in error.
J. C. Savage, Ralph C. Jenkins, Atlanta, for defendant in error.
1. The ordinance under which the defendant was convicted requires that This ordinance is attacked as unconstitutional as being in violation of Const. art. 1, § 4, par. 1, Code, § 2-401, as follows: '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 general law.' As to this constitutional provision, it was held in City of Atlanta v. Hudgins, 193 Ga. 618, 623, 19 S.E.2d 508, 511, as follows:
2. With the above quoted yardstick in mind we examine the special law on the regulation of the trade of barbering, contained in Chapter 7 of the Atlanta Code, in connection with the general law on the regulation of that trade as contained in Chapter 84-4 of the Code of Georgia. That chapter sets up a State Board of Barber Examiners with power to adopt rules and regulations prescribing the sanitary requirements of a barber shop; to examine barber shops in regard to cleanliness and sanitary condition; to examine applicants for certificates of registration, to require physical examinations showing the applicant is free from infectious or contagious diseases and to inquire into his character, ability, and experience. In addition to the examination fee the applicant pays a $5 registration fee, $7 for certificate of registration, and annual renewal fees of $2. When he has complied with these requirements, he is licensed to carry on the trade within this State. The purpose of the general law is accordingly to sift qualified from unqualified applicants, to license qualified applicants, and thereafter to keep practicing members of the trade under supervision, with provisions for revocation of said certificates of registration if the person involved fails to keep within the standards set up.
3. The Atlanta ordinance sets up a City Barber Board vested with general power to enforce the administration of the same, and the requirements of the ordinance are to see that barbers within the city do the following: § 7.5--Observe Stated opening and closing hours (that this provision is void as being unreasonable, see Chaires v. City of Atlanta, 164 Ga. 755(1), 139 S.E. 559, 55 A.L.R. 230). § 7.6--Prohibits barber shops being open on Sundays (which is otherwise covered by general law). § 7.7--Prohibits barber shops remaining open on holidays. §§ 7.8, 7.9--Prohibits advertising prices or charging prices less than minimum prices fixed in accordance with rules and regulations of the city board (that a city has no right to engaged in price fixing, see 62 C.J.S., Municipal Corporations, § 239; Greene v. Cook, 219 Mass. 121, 106 N.E. 573. §§ 7.10, 7.11--Prohibits colored barbers from serving white women and calls for posting of signs showing what races are served (that this provision is void, see Chaires v. City of Atlanta, supra, headnote 2). § 7.3, here under consideration, requires payment of $35 annually to 'procure an annual permit from the city barber board to practice under any such [minimum price] agreement.' Under § 7.37 the amounts so collected go to pay expenses incidental to the administration of this article, the balance, if any, to be turned over to the city treasury.
It follows that the ordinance, in attempting to regulate a trade already under State regulation, comes within the constitutional inhibition that no special law shall be enacted in any case for which provision has been made by an existing general law. It attempts to deal with 'some remote segment or element of the general subject embraced in the general law,' but this attempt does not add anything to its vitality. The main purpose of the board appears to be to engage in price fixing under agreements of percentages of the practicing members of the trade. Nothing in the case of Anthony v. City of Atlanta, 66 Ga.App. 506, 18 S.E.2d 82, can be construed as holding that the city has any constitutional right to engage in price fixing, it only being held there that the question was not properly raised. On a similar question, and under a state of facts closely resembling the situation here, it was held in Trimble v. City of Topeka, 147 Kan. 111, 75 P.2d 241, 244, reversing the conviction of a municipal court for violation of a similar ordinance, as follows: ...
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